It's a very old lesson. Legislators support vague delegations aimed at some general good (clean air, workplace safety, endangered species), and claim political credit for doing so. Then they (or their successors) sit back and criticize agencies and courts that have to apply those vague standards to specific facts. Choices made from outside the veil of ignorance are inevitably much more difficult than those made from behind it.
But I am making a further point. The context of religious exemptions -- because of all the variations among faiths (beliefs and practices) and all the variations among regulatory or other government contexts in which conflicts may arise, is uniquely vulnerable to the problem of irreconcilable inconsistency over time. We can have a regime of no exemptions under these kind of general standards, or a regime of ad hoc, we know it when we see it, all things considered, interest-balancing exemptions (that is, a regime that will appear lawless when scrutinized over time). I don't think there is any other choice. RFRA represents the latter choice, but (especially in a case made prominent by its culture war salience) the judicial outcome will inevitably be seen as an act of bad faith by the losers (whichever side that is). On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin <hillelle...@gmail.com> wrote: > What's ironic to me is that the same legislators (I.e. All of them) who > attack the courts for overreaching and making policy-decisions chose to > bestow immense policy-making power on those same courts through RFRA. > There's a legislative process lesson in there somewhere. > > > On Monday, June 9, 2014, Ira Lupu <icl...@law.gwu.edu> wrote: > >> It is worth recalling that federal RFRA itself was anything but divisive. >> Au contraire. It passed with overwhelming support from both parties, and >> wide support among civil rights and civil liberties groups (with Hobby >> Lobby under advisement, some of these groups are now running from RFRA like >> it was the plague). >> >> The problem now is not divisiveness, per se. Like any controversial >> Supreme Court decision, some will hate it and others will love it. >> Inevitably, these folks will be divided by their disagreement. >> >> The problem is legitimacy. Free exercise standards, pre-Smith, were >> incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and >> sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's >> concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has >> proven in the lower courts to be equally plastic at every turn. What is a >> substantial burden, a compelling interest, a less restrictive means? Does >> RFRA restore U.S. v Lee, including its dictum about commercial actors >> accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? >> (See the Kagan -- Clement colloquy at oral argument about what RFRA >> "restores.") >> >> The fussing over state RFRA's recently has reflected the same massive >> uncertainty over what they will be held to protect -- wedding vendor >> refusal to serve same sex couples? Employer refusal to provide spousal >> benefits to same sex spouses of employees? Let's just leave it to the >> courts (in these cases, state courts) is not reassuring to anyone. >> >> What I fear is that, whatever the outcome in Hobby Lobby, the losers will >> never believe that they lost based on any legal principle that will be >> applied consistently over time. Accordingly, they will believe that they >> lost only on culture war politics. Religious exemptions present many deep >> problems, including judicial appraisal of the religious significance of >> particular acts, but this problem of inconsistency (and therefore >> illegitimacy) over time seems particularly severe. >> >> >> On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene <vol...@law.ucla.edu> >> wrote: >> >>> I appreciate Alan's attempt to cabin the "divisiveness" >>> concept, but I wonder whether it works. Nothing is beyond the scope of >>> political decision-making -- there is always the possibility of >>> constitutional amendment, and, more importantly, so long as various >>> decisions involve the contested interpretation of constitutional language, >>> there is the possibility of using political processes to select Justices >>> who will take a different view of the matter. Indeed, my sense is that >>> some of the most prominent political divisions along religious lines have >>> come with regard to decisions that aimed to take things off the table, but >>> have failed to do so. Roe v. Wade is the classic example, though in some >>> measure the various government speech decisions, from the school prayer >>> case onwards, have had that effect as well. >>> >>> >>> >>> Now it may well be that other decisions have indeed settled matters in >>> considerable measure, and thus diminished religious groups’ political >>> mobilization as religious groups. But my guess is that it’s often not easy >>> to predict which creates more mobilization of religious groups as religious >>> groups: a particular executive or legislative policy decision, or a Supreme >>> Court decision reversing that policy decision. >>> >>> >>> >>> Eugene >>> >>> >>> >>> > -----Original Message----- >>> >>> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >>> >>> > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein >>> >>> > Sent: Sunday, June 08, 2014 7:37 PM >>> >>> > To: Law & Religion issues for Law Academics >>> >>> > Subject: RE: "Divisiveness" >>> >>> > >>> >>> > If divisive means that people will be upset by a substantive decision >>> than Eugene >>> >>> > is clearly correct. I have always thought the issue was whether a >>> decision was >>> >>> > one that provoked political divisions along religious lines in the >>> sense that if >>> >>> > government could promote religion (or interfere with religion) >>> religious groups >>> >>> > would have an additional incentive to organize and mobilize as >>> religious groups >>> >>> > in order to make sure that it was their faith that the government >>> promoted and >>> >>> > that it was not their faith that was subject to government >>> interference. Placing a >>> >>> > church-state issue beyond the scope of political decision-making by >>> subjecting it >>> >>> > to constitutional constraints avoided (or at least mitigated) these >>> kinds of >>> >>> > political/religious divisions. >>> >>> > >>> >>> > There is probably a better term for this concern than divisiveness. >>> >>> > >>> >>> > Alan Brownstein >>> >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >>> >> >> >> >> -- >> Ira C. Lupu >> F. Elwood & Eleanor Davis Professor of Law, Emeritus >> George Washington University Law School >> 2000 H St., NW >> Washington, DC 20052 >> (202)994-7053 >> Co-author (with Professor Robert Tuttle) of "Secular Government, >> Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) >> My SSRN papers are here: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> > > > -- > Hillel Y. Levin > Associate Professor > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
