I didn't say that the Greens are not potentially burden as company directors -- indeed, that's exactly what I've argued the case is about, rather than being about corporate free exercise or shareholder rights:
http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 2:17 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > The "just like wages" characterization is highly contested and, at least > if pushed to its logical conclusion, unsustainable. As to the shareholder > issue, almost everyone these days owns property through trusts; anyone who > has substantial assets and wants to avoid probate will do so. So it's not > surprising that the Greens are not personally shareholders but rather > trustees of the trusts that hold the shares (if I understand the facts > correctly). Their rights are implicated as beneficial owners and as > controlling persons, by way of their being trustees of their family trust > and also officers and directors who personally take actions on behalf of > the corporation. As for them not being required to provide the coverage > they object to, because they can just leave their employees out in the > Obamacare cold, and pay a fine, there is a strong argument that the law > still creates a substantial burden. I think we've discussed that issue at > length. > > Mark > > Mark S. Scarberry > Pepperdine University School of Law > > > Sent from my iPad > > On Jun 10, 2014, at 10:09 AM, "Marty Lederman" <lederman.ma...@gmail.com> > wrote: > > I agree with Mark's correction that the complaint of the Greens is not > that their employees' use of contraceptive burdens their religion. > > But it's also not that they have to "buy insurance that specifically > covers the drugs." For thing, the law doesn't require HL to offer an > employee health insurance plan at all. For another, the Greens aren't > shareholders, and therefore aren't "buying" anything. Hobby Lobby, Inc. > --as opposed to the Greens-- is contracting for an insurance plan -- but of > course that plan is not made available to their employees gratis; it is a > part of their compensation package, provided in exchange for their labor, > just like wages. > > The nature of the way in which the Greens are alleged to be required to > act in violation of any religious obligations, therefore, is not at all > obvious. > > > On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote: > >> Jon, >> >> I think you don't understand, or are ignoring, the point of view of the >> Hobby Lobby parties. They don't object to employees buying what the Hobby >> Lobby parties consider to be abortifacient drugs. I don't think they >> monitor what their employees do with wages or would take any action against >> employees who buy or use such drugs. They object to being required >> themselves to take an action specifically related to abortion -- buying >> insurance that specifically covers the drugs. You might object to buying a >> gun for an employee, even though the recipient would be the one who uses >> it. You might, if you were a pacifist, object to being drafted to serve as >> an army medic or supply clerk, even though you would not be killing anyone >> but merely be advancing the army's operations. >> >> I understand that some people object to this characterization, but it >> doesn't move the discussion forward to just assume that it isn't the >> position taken by the objectors in Hobby Lobby. >> >> Mark >> >> Mark S. Scarberry >> Pepperdine University School of Law >> >> Sent from my iPad >> >> > On Jun 9, 2014, at 2:35 PM, "mallamud" <malla...@camden.rutgers.edu> >> wrote: >> > >> > There is some authority for not preferring religion over non-religion. >> > I do not think religious people should get exemptions reasons not >> > connected to the practice of their religion (church services, prayer, >> > lighting candles, sacrificing chickens etc.) To me many requests sound >> > like "I think it is wrong for religious reasons" and therefore other >> > people should not engage in that behavior. E.g. I will not pay my taxes >> > because taxes pay for killing people. No one is asking the owners of >> > Hobby Lobby to engage in activities that they believe offend their >> > religion; they are seeking not to pay employees in such a way that >> > certain contraceptives would be covered. The decision to use or not use >> > the contraceptives is the employees'. One difficulty is that the courts >> > are loath to inquire into to the closeness of the connection of the >> > claim to the religious belief. But without limits exemptions will >> > become legion. >> > >> > Exemptions usually involve some unfairness. That would be mitigated if >> > religious exemptions were limited to the actual practice of religion >> > rather than attempts to impose beliefs on others through refusing to >> > comply with general laws. Smith is a good example and, as we know, does >> > not stop you from sacrificing chickens because people in the community >> > are offended. Take it outside the church or home and give exemptions to >> > general laws and that will create problems if the exemptions become wide >> > enough to make it seem that religious folks have general privileges in >> > society that secular folks do not. Cf. Affirmative action. >> > >> > I noted previously Scalia's citation (in during oral argument) of the >> > overwhelming majority extending the VRA as evidence that the law was not >> > carefully considered. During RFRA's passage and thereafter I focused on >> > conservatives articulating the issue as one in which the Supreme Court >> > disrespected religion, and those on the other side of the spectrum >> > articulated the Smith decision as having disrespected constitutional >> > rights. From discussion about Scalia with lawyers and non-lawyers, I >> > cannot help thinking that a dislike of Scalia contributed to one side's >> > support of RFRA. >> > >> > Jon >> > >> > >> >> On 2014-06-09 17:00, Steven Jamar wrote: >> >> “nones”? >> >> Huh. I knew that was a thing, but didn’t really expect to see it >> >> here. >> >> >> >> Steve >> >> >> >> On Jun 9, 2014, at 4:49 PM, mallamud <malla...@camden.rutgers.edu> >> >> wrote: >> >> >> >>> I agree with Alan's statement below, stated better than I did. I >> >>> would add that we now do/should include the nones within the system. >> >>> >> >>> Jon >> >>> >> >>>> On 2014-06-08 22:36, Alan Brownstein wrote: >> >>>> If divisive means that people will be upset by a substantive >> >>>> decision >> >>>> than Eugene is clearly correct. I have always thought the issue was >> >>>> whether a decision was one that provoked political divisions along >> >>>> religious lines in the sense that if government could promote >> >>>> religion >> >>>> (or interfere with religion) religious groups would have an >> >>>> additional >> >>>> incentive to organize and mobilize as religious groups in order to >> >>>> make sure that it was their faith that the government promoted and >> >>>> that it was not their faith that was subject to government >> >>>> interference. Placing a church-state issue beyond the scope of >> >>>> political decision-making by subjecting it to constitutional >> >>>> constraints avoided (or at least mitigated) these kinds of >> >>>> political/religious divisions. >> >>>> >> >>>> There is probably a better term for this concern than divisiveness. >> >>>> >> >>>> Alan Brownstein >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> >> >>>> ________________________________________ >> >>>> From: religionlaw-boun...@lists.ucla.edu >> >>>> [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene >> >>>> [vol...@law.ucla.edu] >> >>>> Sent: Sunday, June 08, 2014 4:54 PM >> >>>> To: Law & Religion issues for Law Academics >> >>>> Subject: "Divisiveness" >> >>>> >> >>>> I agree very much with Tom on this point. In most >> >>>> controversies, both sides are acting in ways that could plausibly >> >>>> be >> >>>> labeled as "divisive." Government religious speech may be seen as >> >>>> "divisive," because it may alienate members of other religious >> >>>> groups; >> >>>> but prohibitions on such speech, or litigation seeking such >> >>>> prohibition, may be as divisive or more so. A pro-Hobby-Lobby >> >>>> decision might be divisive, but an anti-Hobby-Lobby decision might >> >>>> be >> >>>> divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision >> >>>> (or an anti-Hobby-Lobby decision) might be divisive -- and so was >> >>>> the >> >>>> implementation of the mandate without a broad religious exemption, >> >>>> as >> >>>> Tom points out. The Employment Division v. Smith regime can be >> >>>> seen >> >>>> as divisive -- but the RFRA regime, or the Sherbert regime, which >> >>>> makes controversial judicially implemented religious accommodations >> >>>> possible, can apparently be divisive, too. >> >>>> >> >>>> Indeed, in my experience, most people -- I speak generally >> >>>> here, and not with a focus on this list -- can easily see the >> >>>> potential "divisiveness" of decisions they dislike on substantive >> >>>> grounds, but don't even notice the divisiveness of decisions they >> >>>> think are sound. After all, if one thinks a decision is sound, >> >>>> it's >> >>>> easy to view those who disagree as just unreasonable, so that their >> >>>> feelings of alienation don't really count (since they deserved to >> >>>> lose, and are now just being sore losers). >> >>>> >> >>>> Of course, >> >>>> >> >>>> Eugene >> >>>> >> >>>> Tom Berg writes: >> >>>> >> >>>>> I get those arguments, but they don't really seem to rest on a >> >>>>> ruling for Hobby >> >>>>> Lobby being "divisive"--they rest on it being (assertedly) >> >>>>> substantively wrong. >> >>>>> One could just as easily charge the Obama administration with >> >>>>> being "divisive" >> >>>>> (undermining "harmony," to use Jon's term) by adopting the mandate >> >>>>> in the first >> >>>>> place. (See Rick Garnett's piece on why arguments about >> >>>>> divisiveness should do >> >>>>> only very limited work in religion cases.) >> >>>> _______________________________________________ >> >>>> To post, send message to Religionlaw@lists.ucla.edu >> >>>> To subscribe, unsubscribe, change options, or get password, see >> >>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >>>> >> >>>> Please note that messages sent to this large list cannot be viewed >> >>>> as >> >>>> private. Anyone can subscribe to the list and read messages that >> >>>> are >> >>>> posted; people can read the Web archives; and list members can >> >>>> (rightly or wrongly) forward the messages to others. >> >>>> _______________________________________________ >> >>>> To post, send message to Religionlaw@lists.ucla.edu >> >>>> To subscribe, unsubscribe, change options, or get password, see >> >>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >>>> >> >>>> Please note that messages sent to this large list cannot be viewed >> >>>> as >> >>>> private. Anyone can subscribe to the list and read messages that >> >>>> are >> >>>> posted; people can read the Web archives; and list members can >> >>>> (rightly or wrongly) forward the messages to others. >> >>> >> >>> _______________________________________________ >> >>> To post, send message to Religionlaw@lists.ucla.edu >> >>> To subscribe, unsubscribe, change options, or get password, see >> >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >>> >> >>> Please note that messages sent to this large list cannot be viewed >> >>> as private. Anyone can subscribe to the list and read messages that >> >>> are posted; people can read the Web archives; and list members can >> >>> (rightly or wrongly) forward the messages to others. >> >> >> >> >> >> -- >> >> Prof. Steven D. Jamar 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 >> >> >> >> Nothing worth doing is completed in our lifetime, >> >> Therefore, we are saved by hope. >> >> Nothing true or beautiful or good makes complete sense in any >> >> immediate context of history; >> >> Therefore, we are saved by faith. >> >> Nothing we do, however virtuous, can be accomplished alone. >> >> Therefore, we are saved by love. >> >> No virtuous act is quite as virtuous from the standpoint of our >> >> friend or foe as from our own; >> >> Therefore, we are saved by the final form of love which is >> >> forgiveness. >> >> >> >> Reinhold Neibuhr >> >> >> >> >> >> >> >> >> >> _______________________________________________ >> >> 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. >> > > _______________________________________________ > 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.
