Three quick points:
1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (all anti-discrimination laws) because those laws raise fundamentally different questions than the exemption sought in Hobby Lobby, there might be less opposition to state RFRA laws. But the Court failed to do that. 2. When people perceive the political momentum behind a state RFRA law to be fueled by concerns that religious employers or operators of public accommodations will have to hire or serve gay and lesbian job applicants or clients, they will interpret the law as furthering that purpose even if, in fact, it is unlikely to be interpreted by a court to permit such discrimination. Certainly, liberal opponents of such laws may overstate their likely impact. But conservative commentators and advocates who describe state recognition of same-sex marriage and anti-discrimination laws protecting gays and lesbians against discrimination as the greatest threat to religious liberty in American history certainly feed the perception that current RFRA laws are intended to protect discrimination in employment and public accommodations. 3. Given today’s climate, I think if people are serious about enacting a state RFRA law without raising the specter of protecting discrimination, they should exclude civil rights laws for the RFRA laws coverage. If narrow exemptions from civil rights laws are to be considered, they would have to be resolved through specific legislation. Recently, California was able to enact a law that significantly strengthened the duty imposed on employers to accommodate the needs of religious employees by essentially excluding a duty to accommodate a religious obligation to discriminate from its coverage. It is important to remember that there are circumstances in which religious exemptions are justified that have nothing to do with discrimination. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, March 27, 2015 11:35 AM To: Law & Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to "race" and "racial" in this sentence: "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal." On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson <ryantimothyander...@gmail.com<mailto:ryantimothyander...@gmail.com>> wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman <lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony & Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. _______________________________________________ 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<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.
