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.
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