I believe Mr. Whelan and others have far less problems with Prof. Laycock's assertions about the first part of his brief (disputing the "exception for one must mean an exception for all" approach) then his assertions regarding that there is no substantial burden in this case.
So the real question is, If we assume the mandate works as petitioners allege, is there a substantial burden? If I'm reading Prof. Laycock correctly, he answers "yes," but doubts the premise of that question. Thus, Prof. Laycock's brief-- including the parts criticizing petitioners' litigation strategy-- could have been filed on either side depending on if he accepts petitioners factual assertions about how the mandate works. That is the point of Mr. Whelan's piece. On Wed, Mar 23, 2016 at 9:39 AM, Laycock, H Douglas (hdl5c) < hd...@virginia.edu> wrote: > Ed Whelan has now put up a post claiming that my exchanges with Eric > “retract” the BJC brief. With respect, that is absurd. > > > > What motivated the brief, and what is so dangerous to religious liberty, > is the argument that courts cannot question claims of substantial burden on > religion and the argument that narrow religious exemptions must inevitably > be expanded to become all-inclusive religious exemptions. And if > petitioners had confidence in their claim that the government is requiring > them to authorize contraception coverage, they would not have had to make > these far more dangerous arguments. > > > > ERISA is not my field, and we will see what the Court says. But there is > no language of authorization in the letter that employers must send the > government refusing to provide contraception. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Kniffin, Eric N. > *Sent:* Wednesday, March 23, 2016 2:19 AM > *To:* 'Law & Religion issues for Law Academics' < > religionlaw@lists.ucla.edu> > *Subject:* RE: Zubik / Little Sisters - testing the scope via a > hypothetical > > > > Thanks, Doug. That makes sense. > > > > As to the nuts and bolts of how the accommodation works, I very much > disagree with your assessment. I think it is pretty plain as a matter of > ERISA law that the government needs the authorization from the employer to > make a TPA deliver contraceptives, and that explains why the government is > fighting so hard to get signatures for this. We explain the underlying law > in an amicus brief I co-authored ( > http://www.becketfund.org/wp-content/uploads/2016/01/Catholic-Benefits-Association-LSP-Amicus.pdf). > The brief also shows that the government prevailed below because the > circuit courts blindly accepted the government’s unsupported (and > unsupportable) claim that DOL has been delegated the power to unilaterally > make TPAs into plan administrators and then force them to supply > contraceptives independent of the employer’s plan. > > > > Back to RFRA, if the accommodation only works if the government can force > an employer to instruct/authorize its TPA (and I understand you don’t think > this is so), what is the analysis a court SHOULD use to determine whether > there is a substantial burden? I agree with you that that would be a > substantial burden. I would reach this conclusion applying an analysis that > looks like the petitioners': I'd look to see what is the claimed religious > exercise, whether it is sincere and religious, and whether the government > bringing serious pressure on the believer to give it up. > > > > Would you apply a different test to reach that result? I think that is > what has me confused by your analysis--I can't figure out what you think > the substantial burden analysis is supposed to look like when it is done > properly. > > > > Eric > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Laycock, H Douglas > (hdl5c) > *Sent:* Tuesday, March 22, 2016 3:26 PM > *To:* Law & Religion issues for Law Academics > *Subject:* RE: Zubik / Little Sisters - testing the scope via a > hypothetical > > > > I think their argument that courts simply cannot question any claim that > religious exercise is substantially burdened would, if adopted by the > Court, discredit religious liberty claims, however this case should come > out under a more appropriate analysis. And I think their argument that the > exemption for churches and their integrated auxiliaries necessarily > requires an exemption for all religious non-profits would, if accepted, > make it far more difficult to enact religious exemptions for anybody. Those > arguments are dangerous, whatever the result in this case. > > > > But on the facts of this case, yes: If the religious non-profits had to > contract with their insurance companies to provide contraception, that > would clearly be a substantial burden in my view. If they had to instruct > or authorize their insurance companies to provide contraception at the > insurer’s expense, that is a closer case, but I am inclined to view that as > a substantial burden. But after the regulations were revised in response to > the stay orders in *Little Sisters* and *Wheaton College*, I think that > neither of those things is going on. And I think that is pretty clear. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Kniffin, Eric N. > *Sent:* Tuesday, March 22, 2016 5:15 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Zubik / Little Sisters - testing the scope via a > hypothetical > > > > Doug--That's a helpful clarification. It seems to me, then, that your > position that the Little Sisters' claim poses a serious threat to religious > liberty is based on your view that the government is right, and the Sisters > are wrong, about whether the government is trying to make them authorize > the coverage in their plan. Is that fair? > > > > To me, that's a very important qualification to your analysis. Without it, > people might read your argument to say that the petitioners' claims are > dangerous even if the government is really trying to force them to > authorize coverage. And from your emails, it now sounds to me like that is > not your position after all (which, at least to me, is a relief!). > > > > Eric > > > On Mar 22, 2016, at 2:16 PM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > No, I do not think that all those people have no burdens. I filed a brief > in support of Hobby Lobby; they were substantially burdened. They had to > pay for, and contract for, what they reasonably believed to be > abortifacients. That case was not about what their employees might do; it > was about what Hobby Lobby and its owners were required to do. > > > > There is an argument in *Zubik* about whether the religious employers > have to authorize their insurance companies to provide separate coverage, > but I think the government has much the better of that argument. The > government authorizes the separate coverage. > > > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Kniffin, Eric N. > *Sent:* Tuesday, March 22, 2016 3:54 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Zubik / Little Sisters - testing the scope via a > hypothetical > > > > Doug--I understand that's the line you think Congress should have adopted, > but that seems to be more a conclusion rather than a test. If the > petitioners are wrong about the test for what is a substantial burden, does > your brief articulate the correct test for courts to follow? I didn't see > it in there. > > > > The problem with your line, it seems to me, is that loads of religious > people have religious beliefs about what they can or cannot help others to > do, even if someone might characterize the other as at "arm's length." Mr. > Thomas thought he couldn't help make tank turrets, even though he wasn't > going to shoot the tank's guns or send it onto the battlefield. Many > people would not sign a death warrant, even though others will perform the > execution separately. Religious universities probably (hopefully!) object > to allowing for a cable television package that includes pornography to be > provided to their dormitories. All of those in some way involve people who > object to taking the action required of THEM (making turrets, signing a > piece of paper, contracting with a cable company) because of what someone > else will do based on their authorization. > > > > Do you think all of those people have no substantial burden if forced to > take those actions by large fines? > > > > Eric > > > > > On Mar 22, 2016, at 11:08 AM, Laycock, H Douglas (hdl5c) < > hd...@virginia.edu> wrote: > > Cases such as those Chip describes probe far too deeply into what the > religious claimant believes. And they are not the only ones. Congress tried > to address such cases in the RLUIPA amendments to RFRA, specifying that a > religious practice need not be compulsory or central to be protected. The > brief that the Baptist Joint Committee and I filed emphasizes the error of > these cases, the danger of overly intrusive inquiries, and the need for > substantial deference to religious understandings of what is burdensome. > > > > But we say that such deference cannot be absolute, that it never has been > absolute, and that if it were absolute, absurd results would follow. But > absolute deference is what both sets of petitioners ask for. They say the > courts can examine sincerity, and they can examine the magnitude of the > penalty for non-compliance, but then the substantial burden inquiry is > over. Courts cannot examine the substantiality of the burden on religion, > apart from the penalties. > > > > And as Marty suggested in a separate post, our brief explicitly proposes a > bright-line test: “Religious objectors are not entitled to exemptions for > secular entities they deal with at arm’s length, or to control the > government’s regulation of such entities.” > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu > <religionlaw-boun...@lists.ucla.edu>] *On Behalf Of *Ira Lupu > *Sent:* Tuesday, March 22, 2016 12:40 PM > *To:* Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > *Subject:* Re: Zubik / Little Sisters - testing the scope via a > hypothetical > > > > We cite four federal district court decisions at pp. 228-229 in the book > -- Luke v. Williams (Oregon); Sayed v. Proffitt (Colorado); Vigil v. Jones > (Colorado); Wares v. Simmons (Kansas), > https://casetext.com/case/wares-v-simmons-2. Ware involved rabbinical > testimony that certain books, desired by a prisoner, were non-essential to > the Jewish faith. > > Pre-1997 RFRA cases from prisons were thick with decisions involving the > question of religious burdensomeness (prison officials do not want to have > to meet the compelling interest test, even a prison-adjusted one, every > time a prisoner asserts the religious significance of a forbidden > practice.) I cite a number of them in The Failure of RFRA, 20 U. Ark. > Little Rock L.J. 575 (1998). > > RLUIPA land use cases involve questions of the religious impact of not > being able to expand a church, add a wing for a church school, or build a > parking lot. > > And do you deny that Yoder invites inquiry into the religious significance > or religious impact of a challenged policy? That is the only "burden" > inquiry in Yoder. > > Please keep in mind that I find all of this deeply troublesome. But RFRA > invites it. (Thomas v. Review Board says courts cannot second guess a > claimant's reading of Scripture. But that does not mean courts cannot > question the religious significance of the actions forbidden or required.) > > > > On Tue, Mar 22, 2016 at 11:57 AM, Kniffin, Eric N. <eknif...@lrrc.com> > wrote: > > Ira, I don't understand the distinction I think you are trying to make. We > agree that sounds like a court must accept the sincere testimony of a > Muslim prisoner who claims his faith requires him to keep a half inch > beard. But you believe the court may instead decide that being forced to > shave is, contrary to the prisoner's testimony, actually not that big of a > deal? What cases have been decided on this basis? > > > > Eric > > > > _______________________________________________ > 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. > > > ------------------------------ > > > This message and any attachments are intended only for the use of the > individual or entity to which they are addressed. 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