RE: Hobby Lobby Question
Sandy, Many people think millions of innocent babies have been intentionally killed. It is nearly intolerable that a government would allow private persons to do this (putting the child outside the protection of the law), and unthinkable that a court would prevent the people from acting through the other branches of government to stop it. Once the government sets up a program of paying for mass abortion, many people will think that the government is too evil to be treated as legitimate. Resistance of various kinds would become morally permissible or even required. You asked how this could be distinguished from use of tax money for unjust wars and for propping up terrible foreign regimes: We have seen that when we try to replace terrible regimes abroad with better ones, we sometimes only make things worse. Did the Shah do bad things? Of course. Did our pressuring the Shah to allow Khomeini to return improve the situation? The question answers itself. Even in wars that many of us may think unnecessary and unjust, our forces generally do not have a policy of intentionally killing innocent noncombatants. We all know that there will be disagreements about which wars need to be fought, and how they should be fought. The vast majority of Americans are not thoroughgoing pacifists; we know that we do need armed forces and that they will sometimes need to be sent to war. But when soldiers intentionally kill innocent noncombatants - not as an unwanted but unavoidable side-effect but intentionally - we want the perpetrators to be prosecuted. When the victims are innocent young children, we want even harsher punishment of the perpetrators. Abortion is an intentional killing of the fetus/unborn child. Only rarely can the death be seen as an unwanted side effect. (Ectopic pregnancies may be an exception.) Yet if the government - our government, using resources taken from us - starts paying doctors to kill innocent children? What would you do, Sandy, if the government paid for vans to pick up unwanted children and kill them? Resistance to paying taxes would probably be the mildest reaction you would have. This may be too foreign to you for it to be understandable, but that is how millions of Americans would feel about massive levels of government funded abortions (or even less-than-massive levels). It's hard for me to believe that those who are strongly pro-life really think in their gut that an early abortion is the same as the murder of an innocent child. If they did, they would refuse to tolerate such mass murder, and we would already have a civil war; or at least we would unless the pro-life forces were convinced that violence would lead to an even worse Hobbesian war of all against all. Perhaps Christian teachings about non-violence or respect for authority help to constrain what could otherwise be violent actions taken in defense of innocent human life. There is occasional violence, but nothing like what would happen if there were vans going around picking up children and killing them, all under police protection. We would get out our hunting rifles. (Actually, I'd go out and buy one, if they were available.) Now, the later the abortion, the more like child murder it becomes (even for those who believe intellectually that all abortions are the same), and the stronger the reaction; that explains why, if I'm correct, the violence tends to be against doctors who perform late term abortions that many people see as being little different from infanticide. Even then, almost all pro-life people reject violence. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 7:45 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of the Seven Years War, but (we now know) the trigger for the American Revolution. Or is the better analogy to slavery, where compromise was ultimately impossible (for better or worse)? Sandy Sent from my iPhone On Jul 6, 2014, at 4:14 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: And then we would have massive resistance that would make our largely voluntary tax system unworkable and create civil division at extreme levels. Think, as mentioned at AALS, peasants with pitchforks. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message
Re: Hobby Lobby Question
Mark with all due respect, infanticide is illegal everywhere in the US and anyone caught and convicted is punished. Do you any evidence of mass killings of babies in this country? I have never seen any evidence of this. Infanticide is pretty rare. I know no jurisdiction that puts babies, infants, or children out of the protection of the law. Can you name such a jurisdiction or give us a statute. Paul Finkelman From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, July 7, 2014 5:12 AM Subject: RE: Hobby Lobby Question Sandy, Many people think millions of innocent babies have been intentionally killed. It is nearly intolerable that a government would allow private persons to do this (putting the child outside the protection of the law), and unthinkable that a court would prevent the people from acting through the other branches of government to stop it. Once the government sets up a program of paying for mass abortion, many people will think that the government is too evil to be treated as legitimate. Resistance of various kinds would become morally permissible or even required. You asked how this could be distinguished from use of tax money for unjust wars and for propping up terrible foreign regimes: We have seen that when we try to replace terrible regimes abroad with better ones, we sometimes only make things worse. Did the Shah do bad things? Of course. Did our pressuring the Shah to allow Khomeini to return improve the situation? The question answers itself. Even in wars that many of us may think unnecessary and unjust, our forces generally do not have a policy of intentionally killing innocent noncombatants. We all know that there will be disagreements about which wars need to be fought, and how they should be fought. The vast majority of Americans are not thoroughgoing pacifists; we know that we do need armed forces and that they will sometimes need to be sent to war. But when soldiers intentionally kill innocent noncombatants – not as an unwanted but unavoidable side-effect but intentionally – we want the perpetrators to be prosecuted. When the victims are innocent young children, we want even harsher punishment of the perpetrators. Abortion is an intentional killing of the fetus/unborn child. Only rarely can the death be seen as an unwanted side effect. (Ectopic pregnancies may be an exception.) Yet if the government – our government, using resources taken from us – starts paying doctors to kill innocent children? What would you do, Sandy, if the government paid for vans to pick up unwanted children and kill them? Resistance to paying taxes would probably be the mildest reaction you would have. This may be too foreign to you for it to be understandable, but that is how millions of Americans would feel about massive levels of government funded abortions (or even less-than-massive levels). It’s hard for me to believe that those who are strongly pro-life really think in their gut that an early abortion is the same as the murder of an innocent child. If they did, they would refuse to tolerate such mass murder, and we would already have a civil war; or at least we would unless the pro-life forces were convinced that violence would lead to an even worse Hobbesian war of all against all. Perhaps Christian teachings about non-violence or respect for authority help to constrain what could otherwise be violent actions taken in defense of innocent human life. There is occasional violence, but nothing like what would happen if there were vans going around picking up children and killing them, all under police protection. We would get out our hunting rifles. (Actually, I’d go out and buy one, if they were available.) Now, the later the abortion, the more like child murder it becomes (even for those who believe intellectually that all abortions are the same), and the stronger the reaction; that explains why, if I’m correct, the violence tends to be against doctors who perform late term abortions that many people see as being little different from infanticide. Even then, almost all pro-life people reject violence. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 7:45 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs
RE: Hobby Lobby Question
I think that the anti-war movement, despite the fact that some people did not want to pay taxes to support what they regarded as immorality, was different. The Hobby Lobby case seems to me to be a battle in the culture wars. Furthermore RFRA give people a colorable tool to use in courts. Using RFRA against paying taxes seems so natural a move, that until the Supreme Court makes clear that RFRA does not afford a religious exemption from taxes, the forces that are using RFRA against Obama care will use RFRA against taxation. For those wanting to make a point about getting respect for their religious views, use of RFRA is just to tempting not to use. And without going to Court, many of them might well simply not pay taxes on the basis of RFRA and use RFRA to defend if the IRS ever has enough resources to come after them. I think the first point was that the voluntary element of enforcing the tax system would be undermined. Jon On 2014-07-07 05:12, Scarberry, Mark wrote: Sandy, Many people think millions of innocent babies have been intentionally killed. It is nearly intolerable that a government would allow private persons to do this (putting the child outside the protection of the law), and unthinkable that a court would prevent the people from acting through the other branches of government to stop it. Once the government sets up a program of paying for mass abortion, many people will think that the government is too evil to be treated as legitimate. Resistance of various kinds would become morally permissible or even required. You asked how this could be distinguished from use of tax money for unjust wars and for propping up terrible foreign regimes: We have seen that when we try to replace terrible regimes abroad with better ones, we sometimes only make things worse. Did the Shah do bad things? Of course. Did our pressuring the Shah to allow Khomeini to return improve the situation? The question answers itself. Even in wars that many of us may think unnecessary and unjust, our forces generally do not have a policy of intentionally killing innocent noncombatants. We all know that there will be disagreements about which wars need to be fought, and how they should be fought. The vast majority of Americans are not thoroughgoing pacifists; we know that we do need armed forces and that they will sometimes need to be sent to war. But when soldiers intentionally kill innocent noncombatants - not as an unwanted but unavoidable side-effect but intentionally - we want the perpetrators to be prosecuted. When the victims are innocent young children, we want even harsher punishment of the perpetrators. Abortion is an intentional killing of the fetus/unborn child. Only rarely can the death be seen as an unwanted side effect. (Ectopic pregnancies may be an exception.) Yet if the government - our government, using resources taken from us - starts paying doctors to kill innocent children? What would you do, Sandy, if the government paid for vans to pick up unwanted children and kill them? Resistance to paying taxes would probably be the mildest reaction you would have. This may be too foreign to you for it to be understandable, but that is how millions of Americans would feel about massive levels of government funded abortions (or even less-than-massive levels). It's hard for me to believe that those who are strongly pro-life really think in their gut that an early abortion is the same as the murder of an innocent child. If they did, they would refuse to tolerate such mass murder, and we would already have a civil war; or at least we would unless the pro-life forces were convinced that violence would lead to an even worse Hobbesian war of all against all. Perhaps Christian teachings about non-violence or respect for authority help to constrain what could otherwise be violent actions taken in defense of innocent human life. There is occasional violence, but nothing like what would happen if there were vans going around picking up children and killing them, all under police protection. We would get out our hunting rifles. (Actually, I'd go out and buy one, if they were available.) Now, the later the abortion, the more like child murder it becomes (even for those who believe intellectually that all abortions are the same), and the stronger the reaction; that explains why, if I'm correct, the violence tends to be against doctors who perform late term abortions that many people see as being little different from infanticide. Even then, almost all pro-life people reject violence. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law FROM: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Levinson, Sanford V SENT: Sunday, July 06, 2014 7:45 PM TO: Law Religion issues for Law Academics SUBJECT: Re: Hobby Lobby Question Mark may well be right, but why would a clearly
Re: Hobby Lobby Question
I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edu wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.com [13] wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com [10] wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com [7] wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 [1] Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org [2] Howard University School of Law fax: 202-806-8567 [3] http://sdjlaw.org [4] For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edu [5] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [6] 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 [8] To subscribe, unsubscribe, change options, or get password, see
Re: Hobby Lobby Question
Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of the Seven Years War, but (we now know) the trigger for the American Revolution. Or is the better analogy to slavery, where compromise was ultimately impossible (for better or worse)? Sandy Sent from my iPhone On Jul 6, 2014, at 4:14 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: And then we would have massive resistance that would make our largely voluntary tax system unworkable and create civil division at extreme levels. Think, as mentioned at AALS, peasants with pitchforks. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Levinson, Sanford V Date:07/06/2014 11:13 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com [13] wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com [10] wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com [7] wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended
Re: Hobby Lobby Question
I assume that the use of quotes around constitutional fact is meant to highlight that the phrase is used as an analogy in this situation, which is governed by a statute and not the Constitution. But partly for that reason, I think the danger of a jury's refusal to follow a proper instruction on the irrelevance of a belief's rationality to its sincerity is not likely to be very significant (since firstly, juries don't usually ignore a judge's instructions, and secondly, a court can also enter a JNOV if the jury has obviously gotten it wrong). If the determination of sincerity is left to courts as some kind of über-fact then I think we really do tread dangerous ground, since that determination will too often be made on hidden policy agendas, for administrative convenience, or other factors that we really don't want to impinge on religious liberty, to say nothing of investing the courts in determining issues of religion that the Constitution forbids them to do. On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. *Warning* *: this message is subject to monitoring by the NSA.* -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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. -- Vance R. Koven
Re: Hobby Lobby Question
Thankfully, this issue is now beside the point, but just to repeat, the premise is mistaken: There are not literally millions of women whose policies are exempted. Almost all women in the United States are or soon will be entitled to cost-free contraceptive coverage in their insurance plan. On Tue, Jul 1, 2014 at 8:04 PM, Rick Duncan nebraskalawp...@yahoo.com wrote: The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, *Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto*, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) -- *From:* Scarberry, Mark mark.scarbe...@pepperdine.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Monday, June 30, 2014 8:03 PM *Subject:* RE: Hobby Lobby Question With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Monday, June 30, 2014 12:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 9:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask
RE: Hobby Lobby Question
I have long thought, as Sandy does, that Naim v. Naim was a disgrace. It is hardly proof that Brown “did absolutely nothing,” though. Even Gerald Rosenberg’s flawed analysis of Brown does not go that far. Looking more closely at Naim, it seems somewhat less outrageous that the Court waited for better cases, which ultimately came in McClaughlin and Loving. Naim was a Chinese citizen who had married a white woman in North Carolina. She sued for divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s eligibility for U.S. citizenship. Even if the Virginia law was held unconstitutional, the lower court could still have granted an annulment or divorce. The husband’s lawyer did not argue that the racial classification was unreasonable, according to an article in 42 American Journal of Legal History, 119. Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably reflecting their fear that the post-Brown slogan “integration means intermarriage” would gain added credence and endanger compliance with Brown. None of this excuses the Court for ducking the issue, but perhaps it helps explain why the Court waited for a prosecution of an interracial couple before deciding the issue. For a good overview, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 7:20 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s
Re: Hobby Lobby Question
I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. *Warning* *: this message is subject to monitoring by the NSA.* -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
No. I do not reject the legitimacy nor the religiousity of the plaintiff’s beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor “legitimacy” of the beliefs. Here, the attenuation wanders through several steps: 1. corporate structure (this alone would not be enough attenuation in my judgment) 2. insurance coverage is outside of their control — it is mandated by the state 3. the actual payments for the abortificants (howsoever erroneously or correctly defined is irrellevant) comes from a third party — the insurers and so this attenuates the action by the owners one step more (compare Rosenberger and voucher cases treatment of directness) 4. the decision to get the abortificants is by the employee. Note that if the employer did not provide any insurance, it would still be complicit with evil by paying any wages at all to women employees some of whom may use an IUD or get a morning-after pill or other offending treatment. Yet surely no one would claim that that would allow the employer to not pay wages or to reduce wages by the cost of obtaining such devices, would they? This is the danger of this case — where does one draw the line on the complicity with evil theory? Can Quakers now stop paying that portion of taxes that goes to support war? That is at least as directly complicit as in this case. So I would use attenuation — we use this sort of idea in proximate cause and in other settings for legal responsibility and can do so here. Imperfectly? Surely. But the law never achieves perfection. Steve On Jul 1, 2014, at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown
RE: Hobby Lobby Question
I think Steve is right that in the there is a difference between challenging the legitimacy or religiosity of plaintiffs beliefs and holding that as a legal matter at some point we will draw the line on extending the protection provided to beliefs that are grounded in complicity with other people's conduct. Ginsburg makes this point explicitly in her dissent. Alito pretty much ignores it. Suppose plaintiff argued that according to their religious beliefs about complicity they could not contribute to an insurance plan that covered treatments provided by hospitals or clinics that also provided abortion services. The only providers covered by a plan they could conscientiously support would be those who personally and institutionally refused to provide abortion services. That is more attenuated than Hobby Lobby's claim, but it is grounded on the same foundation of complicity. The question to me is whether the correct place to take this attenuation into account is in the determination of substantial burden or whether it should be considered in evaluating the government's compelling state interest and whether there are less restrictive means available to further the state's goals. The downside of focusing on attenuation in deciding whether there is a substantial burden is that courts may be more influenced by their doubts as to the legitimacy or religiosity of belief when they are asked to evaluate the substantiality of the burden and using substantiality of the burden to control attenuation may result in some cases where the government wins even though it's interest is very low and should not be considered weighty enough to justify even an attenuated burden on religious exercise. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, July 01, 2014 9:32 AM To: Law Religion Law List Subject: Re: Hobby Lobby Question No. I do not reject the legitimacy nor the religiousity of the plaintiff's beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor legitimacy of the beliefs. Here, the attenuation wanders through several steps: 1. corporate structure (this alone would not be enough attenuation in my judgment) 2. insurance coverage is outside of their control - it is mandated by the state 3. the actual payments for the abortificants (howsoever erroneously or correctly defined is irrellevant) comes from a third party - the insurers and so this attenuates the action by the owners one step more (compare Rosenberger and voucher cases treatment of directness) 4. the decision to get the abortificants is by the employee. Note that if the employer did not provide any insurance, it would still be complicit with evil by paying any wages at all to women employees some of whom may use an IUD or get a morning-after pill or other offending treatment. Yet surely no one would claim that that would allow the employer to not pay wages or to reduce wages by the cost of obtaining such devices, would they? This is the danger of this case - where does one draw the line on the complicity with evil theory? Can Quakers now stop paying that portion of taxes that goes to support war? That is at least as directly complicit as in this case. So I would use attenuation - we use this sort of idea in proximate cause and in other settings for legal responsibility and can do so here. Imperfectly? Surely. But the law never achieves perfection. Steve On Jul 1, 2014, at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life
Re: Hobby Lobby Question
Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.commailto:vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. -- Vance R. Koven Boston, MA USA vrko...@world.std.commailto:vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby Question
. To protect non-officeholders, we always limit the rights of the office -- and they always complain that carpetbaggers are interfering with the rights of the institution. Protecting the corporation’s religious rights can only mean protecting the rights of its incumbent decisionmakers to use their power to impose their religious views on other participants. This is substantively if not technically “establishment,” not “free exercise.” If the goal were to protect the religious freedom of corporate participants other than the board of directors and those who vote for them, we’d have to restrict the corporation’s freedom of action, much as we do in civil rights law, labor law, contract law, consumer protection, environmental and safety law, human rights law, etc. DG From: Alan Brownstein [mailto:aebrownst...@ucdavis.edu] Sent: Monday, June 30, 2014 5:08 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 30, 2014 12:29 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http
Re: Hobby Lobby Question
Hobby Lobby was a RFRA case, so I’m puzzled below by the references below to the First Amendment (point 1) and a “constitutionally protected right” (point 6). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Daniel J. Greenwood daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Tuesday, July 1, 2014 at 1:40 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby Question 1. Rhetorically, it was probably overdetermined that the Court grant the rights to the corporation and not its “owners”. By claiming that it was protecting the corporation, the Court avoided the curious problem of why the FA should protect a particular, and peculiarly absolutist, view of corporate governance – “an economic theory which a large part of the country does not entertain.” 2. Non-profits clearly don’t have owners. Neither (less clearly) do for-profit corporations, at least where they have more than one shareholder: no one has the most basic right of ownership, the right to waste. Neither does Hobby Lobby, if I understand correctly: its sole shareholder is a trust and the trustees are barred from exercising independent judgment on a number of important issues. 3. Accordingly, had the Court based its new right in the rights of the “owners” it would have been forced to make a clear and decisive distinction between closely-held, shareholder-controlled corporations – the only form of corporation that has owners in anything resembling the ordinary sense of ownership (and even then, only if you take corporate law procedure to override its substance) –and all other corporations. That, of course, would make the Court’s reliance on the Dictionary Act silly. 4. Moreover, had it given the right to the “owners”, it would have to confront the problem that we no longer allow ownership of employees. Whatever the “owners” own (the Greens, apparently, own nothing at all, but are instead the beneficiaries of a trust that owns Hobby Lobby’s shares), they do not own the bodies or the medical care or the contract rights of the firm’s employees. The issue here is the relative power of different claimants to speak for the corporation under the rules of corporate governance: whether employees, managers, shareholders or the People get to decide the terms on which corporate medical insurance is written. 5. Who determines the corporate position on controversial issues ought to be an issue of corporate law, contract law and the ACA, perhaps even Federalism. It has next to nothing to do with religious freedom, except to the extent that general principles (not our law) suggest allowing different individuals to follow their conscience with a minimum of interference from other individuals or power structures. 6. The Greens have won the right to impose their religious views on the corporation and its unwilling participants despite the ACA’s rule that they must share this corporate decisionmaking role with their employees. The ACA decentralized the corporate decision about contraceptives, allowing each corporate participant to follow her or his own conscience. The Court holds, instead, that contraceptive decisions may be made instead by directors or shareholders or trust beneficiaries of the shareholder(it’s not entirely clear which role now has a constitutionally protected right to override ordinary corporate law and impose its views on the other corporate participants) and imposed on corporate employees and customers. Those people are put to the “difficult choice” of giving up the benefits of corporate form or accepting the fiat of the newly empowered corporate elite. The issue resolved here is not state vs citizen or majority religion vs minority religion but rather the internal decisionmaking structure of the firm. 7. Following an ancient tradition, the Court claims that granting rights to the organization protects the “people (including shareholders, officers, and employees) who are associated with [it]”. In US constitutional law, this argument goes back at least to Letson, the first corporation-and-the-Constitution case. Repetition and age, however, have not made the argument sound. The claim, as should be clear to anyone familiar with the social contract tradition, is false. Protecting the organization protects the incumbent officeholders against upstarts and dissidents who might want to share the decisionmaking power or disagree with the decisions officeholders seek to impose on them. Thus, minority and democratic rights in international and constitutional law begin by reducing the protection the “state” has (inherited royal prerogative
Re: Hobby Lobby Question
That is, of course, a deep problem. People can sincerely believe absolutely crazy things. Sandy Sent from my iPhone On Jul 1, 2014, at 12:29 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.commailto:vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. -- Vance R. Koven Boston, MA USA vrko...@world.std.commailto:vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, June 30, 2014 8:03 PM Subject: RE: Hobby Lobby Question With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602
Re: Hobby Lobby Question
I wonder if the complicity with evil position is similar to the position many academics took a number of years ago concerning disinvestment and boycotts of companies that did business in the old South Africa? Maybe that metaphor would strike a chord? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Arthur Spitzer artspit...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, July 1, 2014 1:04 AM Subject: Re: Hobby Lobby Question I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby’s acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard
Re: Hobby Lobby Question
I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal - in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level.These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017tel:202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567tel:202-806-8567 http://sdjlaw.org For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: Hobby Lobby Question
The Court also said that there’s a compelling government interest in preventing race discrimination in employment, even though there are literally millions of people who are exempted from Title VII (since they work for employers who have fewer than 15 employees). Is such gross underinclusion relevant to the issue of compelling interest? If so, does it keep the interest from being compelling, and entitle religiously objecting employers with more than 15 employees to an exemption from Title VII? The Court has also said that there’s a compelling government interest in collecting federal income taxes, even though there are literally millions of people who pay no net federal income tax. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to paying certain kinds of taxes are entitled to an exemption from federal text law? The Court has also rejected a claim of religious exemption from the draft (for people who oppose only unjust wars, and therefore aren’t entitled to a statutory exemption), and has been understood as saying that there’s a compelling government interest in raising armies, even though there are literally tens of millions of people who aren’t eligible for the draft. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to unjust wars really are entitled to a draft exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, July 01, 2014 5:04 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRNhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby Question
Eugene read my mind and wrote exactly what I was going to write. Maybe gross underinclusion isn't entirely irrelevant, but standing alone it has little bearing on whether the state's interest is compelling or not for religious liberty exemption purposes. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, July 01, 2014 8:09 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question The Court also said that there’s a compelling government interest in preventing race discrimination in employment, even though there are literally millions of people who are exempted from Title VII (since they work for employers who have fewer than 15 employees). Is such gross underinclusion relevant to the issue of compelling interest? If so, does it keep the interest from being compelling, and entitle religiously objecting employers with more than 15 employees to an exemption from Title VII? The Court has also said that there’s a compelling government interest in collecting federal income taxes, even though there are literally millions of people who pay no net federal income tax. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to paying certain kinds of taxes are entitled to an exemption from federal text law? The Court has also rejected a claim of religious exemption from the draft (for people who oppose only unjust wars, and therefore aren’t entitled to a statutory exemption), and has been understood as saying that there’s a compelling government interest in raising armies, even though there are literally tens of millions of people who aren’t eligible for the draft. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to unjust wars really are entitled to a draft exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, July 01, 2014 5:04 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRNhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby Question
Will do. I think overblown rhetoric from both sides was to be expected. It was not my case; I just filed an amicus brief. 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 Richard Friedman Sent: Monday, June 30, 2014 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Hi, Doug. Congrats on the result! I haven't focused enough on it to have any clear sense of the merits, but the outcome does seem sensible to me, and it sure seems that some of the rhetoric I'm seeing on the other side -- much of it in support of fund-raising appeals -- is way overblown. I hope all else is well. Please pass on my warm regards to Terry. Best, Rich On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 tel:%28678%29%20641-7452 hle...@uga.edu mailto:hle...@uga.edu hillelle...@gmail.com mailto: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 mailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
I know. But it's not as if you were uninvolved, either in the legislation or in the case. Congratulations are certainly in order! Rich On Mon, Jun 30, 2014 at 4:41 PM, Douglas Laycock dlayc...@virginia.edu wrote: Will do. I think overblown rhetoric from both sides was to be expected. It was not my case; I just filed an amicus brief. 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 *Richard Friedman *Sent:* Monday, June 30, 2014 4:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby Question Hi, Doug. Congrats on the result! I haven't focused enough on it to have any clear sense of the merits, but the outcome does seem sensible to me, and it sure seems that some of the rhetoric I'm seeing on the other side -- much of it in support of fund-raising appeals -- is way overblown. I hope all else is well. Please pass on my warm regards to Terry. Best, Rich On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
As have I: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvii-upshot-of.html On Mon, Jun 30, 2014 at 4:26 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: I have just posted some (probably controversial) preliminary thoughts on Hobby Lobby on Religion Clause-- http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html Howard Friedman -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [ tcb...@stthomas.edu] *Sent:* Monday, June 30, 2014 4:12 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Hobby Lobby Question The majority opinion gives ammunition to the plaintiffs in the nonprofit cases by reemphasizing that when the plaintiffs determine that a certain complicity violates their beliefs, the courts shouldn't find that too attenuated to be a burden. On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the insurer-pays) accommodation generally as the solution, and he seems not particularly enamored of the nonprofits' argument that the government can just pay for contraception with a new funding program. (The majority discussed that argument approvingly, and Kennedy joined the majority opinion in full; so it's one of those questions about parsing the opinion of a swing justice who also joined the majority opinion.) So isn't the Court pointing toward some form of the nonprofit accommodation with a different trigger. Are there reasons why the government can't adopt as a trigger the simple notice to HHS, the solution the Court adopted in the stay order in the Little Sisters case? Or was the government just waiting to see if it would win in Hobby Lobby? - 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 Douglas Laycock [ dlayc...@virginia.edu] *Sent:* Monday, June 30, 2014 2:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives
RE: Hobby Lobby Question
I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 30, 2014 12:29 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
Alan Brownstein wrote: I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? By my read (Slip op at 29) for the purposes of sincerity, the right and exercise stems from the natural person and into the fictions they own and operate, but the corporation itself has the right to further a policy of protecting natural persons. My worry with your formulation is that too much focus on the owner/operator may impact any read of their sincerity. If owner Bob operates closely held Acme Corporation with religious restrictions, but not closley held Collective Corporation, does Bob not sincerely hold his religious beliefs? As to the least restrictive alternatives, it seems like there cannot be restrictions for me but not for thee, at least when it comes to religious accommodation. On the other hand, there might be set up for saying that an existing opt-out accommodation that the government demonstrates is the lowest cost may presumably be a least restrictive means, maybe even presumptively so. At least, those are the horses I might trade to avoid perverse incentives. Other than that, it seems like the majority has given themselves very little room to move in interpreting least restrictive means in the future. -Kevin Chen On Mon, Jun 30, 2014 at 5:07 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock *Sent:* Monday, June 30, 2014 12:29 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546
RE: Hobby Lobby Question
With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: With regard to Sandy's comment that there isn't a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means - less restrictive of religious liberty - than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections. ... It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. ... If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS's argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens' religious beliefs. Cf. ?2000cc-3(c) (RLUIPA: '[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.'). HHS's view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage for free (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn't a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe
Re: Hobby Lobby Question
With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Monday, June 30, 2014 12:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 9:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby
Re: Hobby Lobby Question
The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby’s acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level.These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ 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: Hobby Lobby Question
Sandy Levinson says, Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the 'performative utterance' of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. I must be missing something. Does Sandy think that if the Supreme Court declares state laws banning same-sex marriages unconstitutional, same-sex couples living in remote corners of Texas or Virginia will have to travel to Austin or Charlottesville to find a minister or county clerk willing to marry them? After Loving v. Virginia, were interracial couples who wished to marry required to travel to miscegenation-friendly counties to get married? Does Sandy think they should have been? It seems quite clear to me that thousands of county clerks will be required to take the steps necessary to create legal same-sex marriages, whether they like it or not. And so it should be. And the Court should not decline to make such a ruling on the ground that it's politically impossible. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 10:20 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer *Sent:* Monday, June 30, 2014 8:51 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer *Warning: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive
Re: Hobby Lobby Question
Sandy's idea that Brown did nothing is simply wrong. Brown altered American culture in profound ways and set the stage for massive civil rights demonstrations, since it signaled the end to legal segregation, and was followed in two years by overturning Plessy. It led to litigation and legislation in all kinds of ways, and it forced the Senators of the former Confederacy, except for LBJ, Gore, and Kefauver, to out themselves with their manifesto. Furthermore, in much of the upper south, as well as in many Catholic school systems in the South, it led so some integration. We need only remember what the US south looked like in 1950 to understand the enormous changes Brown led to. From: Levinson, Sanford V slevin...@law.utexas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, June 30, 2014 10:20 PM Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared
