Eugene's argument below goes to the merits of distinguishing between for-profit corporations and non-profit religious institutions, and as I said in my initial message, I think there "may well be a fine argument for taking a new approach" to the merits issue in Hobby Lobby. "Patently frivolous" is not my description of exemption claims by for-profit corporations; it was the Supreme Court's description of the religious liberty claim in Piggie Park. My sense is that the language from the Piggie Park Court was reflective of an accepted notion at the time that for-profit businesses did not have a presumptive right to religious exemptions, even if non-profit religious institutions might have such a right. A similar notion is prevalent in federal and state statutes that distinguish between for-profits and non-profits for exemption purposes; that notion runs through several of the opinions in Amos; and it strikes me as the most likely explanation for why Piggie Park's arguments got the back of the judicial hand, while Bob Jones University's arguments got serious consideration by both the executive and judicial branches. And I continue to think it's fair to say that, until recently, it would have seemed "off the wall" to argue that companies like Piggie Park and Hobby Lobby have a presumptive right to religious exemptions from commercial regulations.
But of course, the Commerce Clause argument in NFIB v. Sebelius also would have seemed "off the wall" in the 1960s when Piggie Park was decided, and that argument was far from frivolous in 2012, when it garnered 5 votes on the Supreme Court. Likewise, I think Hobby Lobby's argument today is far from frivolous, and it could well garner a majority on the Court. As for Braunfeld and Lee, I appreciate the effort to turn them into pro-exemption cases, but both actually denied exemptions to for-profit businesses, and Lee ended with language that is very difficult to reconcile with such exemptions. And had those cases involved restaurant or retail chains, rather than sympathetic sole proprietors, I'm guessing the Court would have disposed of their claims with less solicitude. With regard to the merits of distinguishing between non-profit religious institutions and for-profit businesses, my inclination is to see a fundamental difference between the operation of a non-profit religious institution -- an activity which in itself seems to be the exercise of religion -- and the operation of a for-profit business -- an activity which in itself does not seem to be the exercise of religion. And it does not strike me as surprising that the law would take very different approaches to religious exemptions in those two contexts, whether under the Constitution or statutes. Cf. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 706 (2012) (concluding that "the text of the First Amendment itself ... gives special solicitude to the rights of religious organizations"). On Tue, Nov 26, 2013 at 9:17 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > But why would that turn a serious argument into a > “patently frivolous” one? Both nonprofits and for-profits are engaged in > monetary transactions. (U.S. v. Lee talked of people “enter[ing] into > commercial activity as a matter of choice,” but education, as we all know, > is a commercial activity whether carried on by non-profit institutions or > for-profit ones.) Both choose to participate in such transactions. When > either discriminates, this has an effect on third parties whom the law is > trying to protect. > > > > Also, as Chip pointed out, Braunfeld v. Brown involved > for-profit businesses, and no-one on the Court thought a free exercise > claim brought by them was patently frivolous. And I should also add that > the unemployment compensation claimants were also engaged in the commercial > marketplace, selling their own labor for profit. The Court has never drawn > a for-profit vs. nonprofit line when it comes to religious freedom claims, > and though Lee hinted at a marketplace transaction vs. other conduct line, > the Court hasn’t generally followed such a line (and in any event Lee > ultimately applied the strict scrutiny test, rather than concluding that > the marketplace transactions kept that test from being applicable). > Likewise, to my knowledge lower courts have not drawn such a line. > > > > Eugene > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske > *Sent:* Tuesday, November 26, 2013 6:13 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: "Patently Frivolous" and discrimination > > > > But Bob Jones University is a nonprofit, which the Supreme Court noted at > the beginning of its opinion, and we're talking about the Court's treatment > of religious exemption claims by for-profit businesses. > > > > > > On Tue, Nov 26, 2013 at 4:59 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > > I appreciate the point, but when the Court confronted the > issue more squarely, in Bob Jones, it didn’t treat the university’s claim > as patently frivolous, but did apply strict scrutiny (though upholding the > law, of course). Likewise, the 1990s lower court cases involving marital > status discrimination in housing, some of which granted exemptions under > state constitutions or RFRAs and some of which denied them, didn’t treat > them as frivolous. So it seems to me the notion that religious exemption > claims can be brought by people running for-profit businesses is pretty > well-established in lower courts, and not foreclosed by the Supreme Court. > And the notion that this would apply even when the businesses are organized > as corporations hardly seems frivolous to me, either. > > > > Eugene > > James Oleske writes: > > > > That is how the Supreme Court described the contention of a restaurant > owner who claimed that 1964 Civil Rights Act "constitute[d] an interference > with the free exercise of [his] religion." Newman v. Piggie Park > Enterprises, Inc., 390 U.S. 400, 402 n.5. Although the restaurant owner's > religion compelled him "to oppose any integration of the races whatever," > 256 F. Supp. 941, 944 (D.S.C. 1966), and although the 1964 Civil Rights Act > required him to serve all races in his restaurants, the Court characterized > the argument as frivolous without engaging in any balancing of burdens and > interests. > > > > > > > > > > _______________________________________________ > 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.
