letter opposing Mississippi RFRA
A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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.
RE: letter opposing Mississippi RFRA
There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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 Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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.
Re: letter opposing Mississippi RFRA
Obviously, I'm not nearly as sanguine as Doug about the possible effects of Hobby Lobby on all these other cases in the commercial sector. For one thing, the Court's rationale if it rules for Hobby Lobby, on both substantial burden and compelling interest, will not in any way, shape or form reflect the idea that this is a one-off because it arises in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country. What's more, this *isn't* a case in which the government has attempted to override the teachings of two large religious groups. Which teaching is that? To be sure, the regulation reflects the view that contraception is socially valuable, which doesn't override any religious teachings, but which of course is not consistent with them. More to the point, that's certainly not a new position for the federal government to adopt -- it's been a long time since *Griswold *-- nor one that most of the Justices will reject. On Tue, Mar 11, 2014 at 1:09 PM, Douglas Laycock dlayc...@virginia.eduwrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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 *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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. ___ 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.
Re: letter opposing Mississippi RFRA
I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');[mailto: religionlaw-boun...@lists.ucla.edujavascript:_e(%7B%7D,'cvml','religionlaw-boun...@lists.ucla.edu');] *On Behalf Of *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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.
Re: letter opposing Mississippi RFRA
To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that *did not involve the commercial sector* -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.comwrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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 *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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. ___ 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.
RE: letter opposing Mississippi RFRA
Griswold is not at issue. For nearly fifty years after Griswold, contraception was uncontroversial because of an implicit but quite sensible agreement to live and let live. The Church and those who followed its teaching didn't try to make contraception illegal or interfere with anyone who wanted to use it, and the government didn't try to make the Church or those who followed its teaching have anything to do with it. The litigation arose when the second half of that implicit agreement broke down. 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 Marty Lederman Sent: Tuesday, March 11, 2014 1:25 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Obviously, I'm not nearly as sanguine as Doug about the possible effects of Hobby Lobby on all these other cases in the commercial sector. For one thing, the Court's rationale if it rules for Hobby Lobby, on both substantial burden and compelling interest, will not in any way, shape or form reflect the idea that this is a one-off because it arises in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country. What's more, this isn't a case in which the government has attempted to override the teachings of two large religious groups. Which teaching is that? To be sure, the regulation reflects the view that contraception is socially valuable, which doesn't override any religious teachings, but which of course is not consistent with them. More to the point, that's certainly not a new position for the federal government to adopt -- it's been a long time since Griswold -- nor one that most of the Justices will reject. On Tue, Mar 11, 2014 at 1:09 PM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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 tel:%28202%29994-7053 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 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
Re: letter opposing Mississippi RFRA
Yes, indeed. And whatever “substantial burden” means, it most certainly does not mean – and could not be applied by courts, with a straight face, to mean – burdens with respect to “long held and clearly stated teaching of two of the largest religious groups in the country.” On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 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) 641-7452tel:%28678%29%20641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto: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.edumailto: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.edumailto: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
Re: letter opposing Mississippi RFRA
All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time). Unlike RFRAs, they make it clear exactly who they apply to and when, and they reflect reasoned judgment by legislators on terms that can be debated by the polity. The sort of proposal that Doug floated a while back, where supporters of same-sex marriage and non-discrimination and supporters of religious liberty sit down and strike a deal that gives both a lot of what they want (but gives neither everything) seems like a reasonable approach. I don't know whether I'd support it, candidly, but to my mind that's how politics and legislation ought to work. And I really can't understand Doug's position that these new RFRA proposals--which are *clearly* meant to allow for religion-based discrimination against gays and lesbians (including businesses), given the context--shouldn't worry us because courts probably won't take them very seriously. Again, if they aren't worth fighting against, then why are so many people fighting *for* them? On Tue, Mar 11, 2014 at 2:05 PM, Greg Lipper lip...@au.org wrote: Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that *did not involve the commercial sector* -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.comwrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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 *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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
RE: letter opposing Mississippi RFRA
I'm not sure what Greg means, but if the government can override such positions held by politically powerful groups, then what chance will minority religions have? It's also important to see that the Protestants who object do so not because HHS is requiring them to provide contraception, but because they sincerely think the drugs they must provide will sometimes cause abortions. That is a red line for those Protestants and, I think, for many Catholics - a real red line, not like the ones sometimes drawn in international affairs. If the government can force religious people to provide for the obtaining of abortions, then all bets are off. Whether or not you think the contraceptives cause abortion, the arguments that would permit the HHS contraceptive mandate are equally applicable to abortion. I think it was Sandy who warned at AALS of peasants with pitchforks. Let's not go there. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper Sent: Tuesday, March 11, 2014 11:05 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 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) 641-7452tel:%28678%29%20641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page:
Re: letter opposing Mississippi RFRA
We've been through this a million times before, so I won't belabor it, but no one is being *required* to provide any drugs to anyone. On Tue, Mar 11, 2014 at 2:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I'm not sure what Greg means, but if the government can override such positions held by politically powerful groups, then what chance will minority religions have? It's also important to see that the Protestants who object do so not because HHS is requiring them to provide contraception, but because they sincerely think the drugs they must provide will sometimes cause abortions. That is a red line for those Protestants and, I think, for many Catholics - a real red line, not like the ones sometimes drawn in international affairs. If the government can force religious people to provide for the obtaining of abortions, then all bets are off. Whether or not you think the contraceptives cause abortion, the arguments that would permit the HHS contraceptive mandate are equally applicable to abortion. I think it was Sandy who warned at AALS of peasants with pitchforks. Let's not go there. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Greg Lipper *Sent:* Tuesday, March 11, 2014 11:05 AM *To:* Law Religion issues for Law Academics *Subject:* Re: letter opposing Mississippi RFRA Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that *did not involve the commercial sector* -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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
RE: letter opposing Mississippi RFRA
I almost apologize for bringing this up, but I think that a key phrase in Mark's post is they sincerely think the drugs they must provide will sometimes cause abortions. It is not simply Marty's point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the sincerely think. I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not sometimes cause abortion. To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small minority of outliers in the scientific community. If we're not talking about outliers, of course, that's a different matter. I take it that the current trial in Michigan is very much about the deference to be paid outliers. (I am fully aware, of course, that occasional outliers turn out to be correct, ahead of their time in battling conventional wisdom. But I suspect that such success stories are few and far between and that most outliers are more likely to be cranks or ideologues. (Consider someone who believes we have a significantly defective Constitution, and that we need a new constitutional convention to correct the problems :)) Things get much more complicated when we leave the realm of empirics, as in the sincere belief that one will be condemned to hell if he/she violates certain tenets of a faith. I have argued several times in earlier postings that I would personally restrict RFRA to that category of sincere belief and not simply a conscientious desire to adhere to given religious doctrines that don't carry sanctions for disobedience. Or, to be more precise, I continue to find totally inexplicable the differentiation between religious views and those based on conscientious secular notions drawn from Kant or any similar source. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 11, 2014 1:44 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA We've been through this a million times before, so I won't belabor it, but no one is being required to provide any drugs to anyone. On Tue, Mar 11, 2014 at 2:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I'm not sure what Greg means, but if the government can override such positions held by politically powerful groups, then what chance will minority religions have? It's also important to see that the Protestants who object do so not because HHS is requiring them to provide contraception, but because they sincerely think the drugs they must provide will sometimes cause abortions. That is a red line for those Protestants and, I think, for many Catholics - a real red line, not like the ones sometimes drawn in international affairs. If the government can force religious people to provide for the obtaining of abortions, then all bets are off. Whether or not you think the contraceptives cause abortion, the arguments that would permit the HHS contraceptive mandate are equally applicable to abortion. I think it was Sandy who warned at AALS of peasants with pitchforks. Let's not go there. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper Sent: Tuesday, March 11, 2014 11:05 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at
RE: letter opposing Mississippi RFRA
Yes, we have been through it before, and we just disagree as to the connection under the mandate between the commercial actor and the provision of the drugs or services. Here, though, I think we're dealing with a separate issue. The rationale being advanced would apply even if the commercial actor was required to provide the drugs or services directly, or to pay for them directly. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 11, 2014 11:44 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA We've been through this a million times before, so I won't belabor it, but no one is being required to provide any drugs to anyone. On Tue, Mar 11, 2014 at 2:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I'm not sure what Greg means, but if the government can override such positions held by politically powerful groups, then what chance will minority religions have? It's also important to see that the Protestants who object do so not because HHS is requiring them to provide contraception, but because they sincerely think the drugs they must provide will sometimes cause abortions. That is a red line for those Protestants and, I think, for many Catholics - a real red line, not like the ones sometimes drawn in international affairs. If the government can force religious people to provide for the obtaining of abortions, then all bets are off. Whether or not you think the contraceptives cause abortion, the arguments that would permit the HHS contraceptive mandate are equally applicable to abortion. I think it was Sandy who warned at AALS of peasants with pitchforks. Let's not go there. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper Sent: Tuesday, March 11, 2014 11:05 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA
Re: letter opposing Mississippi RFRA
All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time) This argument proves entirely too much. RFRA(s), after all, is a legislative foray into the notoriously unstable, unpredictable and unintended consequence filled field of constitutional law. We might as well get up in arms over Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances which is not exactly the gold standard of restrained drafting. Rights are hard, and accommodating competing rights is harder. I indulge in the fantasy that liberty is a founding belief that we all can believe in and come to reasonable compromise but reality continuously disabuses me of the notion. Disagreements over the law in America are fights between competing cultures, ideologies and interests, and legislatures are very good at splitting into factions and very bad at keeping society together in common cause. Sure, it would be great if accommodation decisions would be made by a sensible decision maker on the ground, (an attentive and compassionate school official probably could have solved the entire *Yoder* problem before it began) but those decision makers still need to be guided by law and many of them are not sensible. For all of the verbiage right now, we are in the middle of deciding as a people how to accommodate for the actual, genuine, outcome-determinative beliefs of actual, real people - people many of us know and love despite and because of our disagreements with them. It is a little unnerving to see these people thrown out with the bathwater by so many lawyers, whose sole redeeming feature as part of a society is our service in vindicating the rights of others. Of course, advocacy in the service of civil rights for marginalized people is compelling, but no one should be faulted for at least trying to protect the multicultural character of our society. They may be reasons to dissent from these particular attempts, but both cultures and the future are unpredictable, and the consequences of any law or lack of law will also be. -Kevin Chen On Tue, Mar 11, 2014 at 2:23 PM, Hillel Y. Levin hillelle...@gmail.comwrote: All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time). Unlike RFRAs, they make it clear exactly who they apply to and when, and they reflect reasoned judgment by legislators on terms that can be debated by the polity. The sort of proposal that Doug floated a while back, where supporters of same-sex marriage and non-discrimination and supporters of religious liberty sit down and strike a deal that gives both a lot of what they want (but gives neither everything) seems like a reasonable approach. I don't know whether I'd support it, candidly, but to my mind that's how politics and legislation ought to work. And I really can't understand Doug's position that these new RFRA proposals--which are *clearly* meant to allow for religion-based discrimination against gays and lesbians (including businesses), given the context--shouldn't worry us because courts probably won't take them very seriously. Again, if they aren't worth fighting against, then why are so many people fighting *for* them? On Tue, Mar 11, 2014 at 2:05 PM, Greg Lipper lip...@au.org wrote: Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that *did not involve the commercial sector* -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . .
RE: letter opposing Mississippi RFRA
On the science, see the Sharon Begley piece in Reuters, U.S. top court cases highlights unsettled science in contraception, noted by Howard Bashman in How Appealing: http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, March 11, 2014 2:02 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA I almost apologize for bringing this up, but I think that a key phrase in Mark's post is they sincerely think the drugs they must provide will sometimes cause abortions. It is not simply Marty's point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the sincerely think. I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not sometimes cause abortion. To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small minority of outliers in the scientific community. If we're not talking about outliers, of course, that's a different matter. I take it that the current trial in Michigan is very much about the deference to be paid outliers. (I am fully aware, of course, that occasional outliers turn out to be correct, ahead of their time in battling conventional wisdom. But I suspect that such success stories are few and far between and that most outliers are more likely to be cranks or ideologues. (Consider someone who believes we have a significantly defective Constitution, and that we need a new constitutional convention to correct the problems :)) Things get much more complicated when we leave the realm of empirics, as in the sincere belief that one will be condemned to hell if he/she violates certain tenets of a faith. I have argued several times in earlier postings that I would personally restrict RFRA to that category of sincere belief and not simply a conscientious desire to adhere to given religious doctrines that don't carry sanctions for disobedience. Or, to be more precise, I continue to find totally inexplicable the differentiation between religious views and those based on conscientious secular notions drawn from Kant or any similar source. sandy ___ 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.
RE: letter opposing Mississippi RFRA
Of course substantial burden isn't limited to large religious groups. But when you do that, you get a wave of litigation. And judges may be able to see and take seriously a problem they (erroneously in my view) had trouble understanding or took less seriously when the religious belief seemed more idiosyncratic. That doesn't make me optimistic that they will deal any better, or differently, with the more idiosyncratic beliefs in the future. The many cases that do not involve gay rights or commercial businesses are still out there. RFRAs have been a disappointment, but they are better than nothing; they do some good for some of the claimants some of the time. They open the door to discussion with bureaucrats who are otherwise inclined to think they need have nothing to say to persons seeking a religious exception. They kick the issues of substantial burden and compelling interest to courts because legislatures are incapable of anticipating or resolving conflicts between law and religion on a case by case basis. The cases are too diverse. 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 Greg Lipper Sent: Tuesday, March 11, 2014 2:05 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.com mailto:hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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 tel:%28202%29994-7053 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
Re: letter opposing Mississippi RFRA
My take on this question is here, Sandy: http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html In short: Some religious persons believe that a drug or device that prevents implantation of the embryo in the uterine wall is the taking of a life, whether it's called an abortion or not. Such implantation-prevention is not considered an abortion by the medical and scientific communities, or by the law, all of which look to implantation itself as the onset of pregnancy. (This is oversimplifying; but that's the gist.) But this isn't a factual or scientific dispute -- it's a when does life begin? dispute. OK, but here's the rub: None of the 18 FDA-approved contraceptive methods in question are designed to work by preventing implantation and, as far as we know, none of them does so regularly. Plaintiffs have identified four methods -- two IUDs, Plan B and ella -- that *might* prevent implantation in some small number of cases. (The number might be zero, too -- we just don't know.) But there are other methods, as well, such as the most common birth control pill, that *might* do so, as well, in some small number of cases. All of which is to say that, even if one believes that preventing uterine implantation is the taking of a life, plan participants' use of the approved contraceptive methods will, at *most*, have that effect in some tiny (perhaps nonexistent) percentage of cases. Therefore, the objection by the plaintiffs in HL and CW is based on the remote possibility that in some unknown but small number of cases, their companies' employees' use of contraception *might* prevent implantation. On Tue, Mar 11, 2014 at 3:26 PM, Mark R. Killenbeck mkill...@uark.eduwrote: On the science, see the Sharon Begley piece in Reuters, U.S. top court cases highlights unsettled science in contraception, noted by Howard Bashman in How Appealing: http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Tuesday, March 11, 2014 2:02 PM *To:* Law Religion issues for Law Academics *Subject:* RE: letter opposing Mississippi RFRA I almost apologize for bringing this up, but I think that a key phrase in Mark's post is they sincerely think the drugs they must provide will sometimes cause abortions. It is not simply Marty's point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the sincerely think. I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not sometimes cause abortion. To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small minority of outliers in the scientific community. If we're not talking about outliers, of course, that's a different matter. I take it that the current trial in Michigan is very much about the deference to be paid outliers. (I am fully aware, of course, that occasional outliers turn out to be correct, ahead of their time in battling conventional wisdom. But I suspect that such success stories are few and far between and that most outliers are more likely to be cranks or ideologues. (Consider someone who believes we have a significantly defective Constitution, and that we need a new constitutional convention to correct the problems J) Things get much more complicated when we leave the realm of empirics, as in the sincere belief that one will be condemned to hell if he/she violates certain tenets of a faith. I have argued several times in earlier postings that I would personally restrict RFRA to that category of sincere belief and not simply a conscientious desire to adhere to given religious doctrines that don't carry sanctions for disobedience. Or, to be more precise, I continue to find totally inexplicable the differentiation between religious views and those based on conscientious secular notions drawn from Kant or any similar source. sandy ___ 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
RE: letter opposing Mississippi RFRA
Well, of course, one of the reasons that RFRA was originally supported by a broad coalition and RLUIPA received broad support as well was that not everyone thought that religious accommodations on a case-by-case basis worked reasonably well. Obtaining accommodations politically case-by-case required the expenditure of enormous time, effort, and political capital - and even when those requesting accommodations were able to marshal such efforts, some requested accommodations were denied for reasons that at their best and most charitably could only be described as completely unpersuasive. And a political case-by-case approach maximizes the opportunity for religious favoritism to influence decision-making. I understand the concerns expressed here and elsewhere about these new RFRA like laws and the motivations of their sponsors. But there were problems that justified support for more general religious liberty statutes 20 years ago and it is not at all clear to me that those problems have disappeared. It is one thing to argue that the cost/risk of protecting discrimination in the for profit commercial sector outweighs the religious liberty benefits of RFRA like laws in cases that do not involve civil rights laws. It is another thing to argue that those benefits do not exist or, from the flip side of the coin, that there would not be any costs if all general religious liberty statutes were repealed. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 11:23 AM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA All of this makes it apparent why RFRAs like this are poorly conceived. We have no idea what their reach will be and how the courts will balance the various interests involved. I have no beef with religious accommodations on a case-by-case basis (which worked reasonably well for quite a long period of time). Unlike RFRAs, they make it clear exactly who they apply to and when, and they reflect reasoned judgment by legislators on terms that can be debated by the polity. The sort of proposal that Doug floated a while back, where supporters of same-sex marriage and non-discrimination and supporters of religious liberty sit down and strike a deal that gives both a lot of what they want (but gives neither everything) seems like a reasonable approach. I don't know whether I'd support it, candidly, but to my mind that's how politics and legislation ought to work. And I really can't understand Doug's position that these new RFRA proposals--which are clearly meant to allow for religion-based discrimination against gays and lesbians (including businesses), given the context--shouldn't worry us because courts probably won't take them very seriously. Again, if they aren't worth fighting against, then why are so many people fighting for them? ___ 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.
RE: letter opposing Mississippi RFRA
Many thanks to Mark for this extremely interesting link. The article concludes with the following: If you can't be absolutely sure the drugs don't block implantation, what probability of killing a human being would you accept? said Dr Jane Orient, an internist in Tucson, Arizona, and spokeswoman for the libertarian, anti-abortion Association of American Physicians and Surgeons, which joined the anti-emergency contraceptive brief. I confess that I am left unpersuaded by such arguments. The first thing one learns in first-year torts-and I have often said that the course I took from Marc Franklin some 44 years ago was the best course I've ever had anywhere on any subject-is that we, as a society, constantly assume the risk that untoward things will happen to statistical people when, eg., building bridges, transporting goods across country, etc., etc., etc. No one who has even a modicum of sympathy with Calabresi's The Cost of Accidents, let alone the more hard-core versions of law and economics, would ever take seriously an argument that if you can't be absolutely sure that no one will die when building a tunnel or a skyscraper, then we should cancel the project? We accept the probability of killing a human being all the time, every single day. Would we allow, a la Thomas v Indiana, an employee for a trucking company to refuse to load truck (or fill the tanks with gas) because it is altogether predictable that some innocent lives will be lost as a result? As always, of course, we have no patience with such moral fastidiousness when the payment of taxes is at issue. We're all conscripted into the de facto sacrifice of innocent lives thanks to one or another state policy (including, most obviously, the use of force). If, of course, one determined that a particular drug operated to kill human beings frequently, that would be another matter. One would still like to see solid statistics instead of very bad philosoph-101 arguments like Dr. Orient's. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark R. Killenbeck Sent: Tuesday, March 11, 2014 2:27 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA On the science, see the Sharon Begley piece in Reuters, U.S. top court cases highlights unsettled science in contraception, noted by Howard Bashman in How Appealing: http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, March 11, 2014 2:02 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA I almost apologize for bringing this up, but I think that a key phrase in Mark's post is they sincerely think the drugs they must provide will sometimes cause abortions. It is not simply Marty's point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the sincerely think. I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not sometimes cause abortion. To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small minority of outliers in the scientific community. If we're not talking about outliers, of course, that's a different matter. I take it that the current trial in Michigan is very much about the deference to be paid outliers. (I am fully aware, of course, that occasional outliers turn out to be correct, ahead of their time in battling conventional wisdom. But I suspect that such success stories are few and far between and that most outliers are more likely to be cranks or ideologues. (Consider someone who believes we have a significantly defective Constitution, and that we need a new constitutional convention to correct the problems :)) Things get much more complicated when we leave the realm of empirics, as in the sincere belief that one will be condemned to hell if he/she violates certain tenets of a faith. I have argued several times in earlier postings that I would personally restrict RFRA to that category of sincere belief and not simply a conscientious desire to adhere to given religious doctrines that don't carry sanctions for disobedience. Or, to be more precise, I continue to find totally inexplicable the differentiation between religious views and those based on conscientious secular notions drawn from Kant or any similar source. sandy ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get
RE: letter opposing Mississippi RFRA
Mississippi does not have a law against sexual-orientation discrimination; if I understand the Lupu et al. letter correctly, the local resolutions in Oxford, Hattiesburg etc. are not laws. Therefore, whatever the motivations of the proponents of the Mississippi state RFRA, it seems the statute won't make any difference in the area of gay rights and religious objections. Isn't it more likely that a state RFRA in Mississippi would be used, say, by a mosque to protect itself from indifference or cloaked discrimination that might not be reachable under Employment Division v. Smith-or by other religious organizations to protect themselves from a variety of other non-tolerant things that officials in Mississippi have been known to do? (This is not a case like Arizona, where a state RFRA already existed; and unless I'm mistaken, Mississippi's free exercise clause has not been interpreted yet on the question whether claims of substantial burdens on religious exercise deserve any heightened scrutiny.) I want to emphasize that I, like the signers of the Lupu et al. letter (p. 4), would like to see a state like Mississippi adopt enforceable policy at the state and local level protecting gays and lesbians from discrimination. I don't know if it ever has a chance of happening. But one way to guarantee it won't happen is to suggest that there can be no exemptions from such laws in the statute itself or under a general religious-freedom act. (Although the Lupu letter frequently refers to discrimination by for-profit businesses, it also speaks more generally of rejecting exemptions from civil rights laws, which could mean no exemptions for religious non-profit organizations either. I wonder whether the signers of the letter think, for example, that if a state law prohibits sexual-orientation discrimination in housing including educational housing, an evangelical or Orthodox Jewish college that provides married-student housing but excludes same-sex married couples cannot be exempted, because it's violating a statutorily-declared civil right?) There are complexities in the way these battles play out politically. Those of us who have argued for several years for exemptions accompanying same-sex marriage enactments in the blue states have done so with the feeling that in those states, with marriage equality enacted and with wide-ranging anti-discrimination laws, the objectors would become the minority needing protection. So we've sought to protect religious organizations, as well as a few very small businesses directly tied to weddings or marriage support (marriage counseling etc.). Of course, we ran into a lot of pushback, even as to religious organizations, because, well, those were blue states and people didn't want exemptions from civil-rights laws. Now, in the red states, it can be argued that some of the proposals are highly imbalanced or are slaps at gays and lesbians: Kansas's certainly was, and some would say Arizona's. But I really question whether these would be the effects of enacting a RFRA for the first time in a state like Mississippi, where there aren't gay-rights laws to be exempted from in the first place, and where various religious minorities (many of them non-Christian) can face indifference and cloaked hostility. This is another way of expressing the point Alan just made: there are costs to opposing RFRAs, costs that people on the left ought to care about too (perhaps especially in red states). Are those costs being weighed accurately against the predicted costs on the anti-discrimination/commercial side? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 11, 2014 12:43 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court
Re: letter opposing Mississippi RFRA
The Supreme Court tried to step out of the interest-balancing business in *Smith*, in part because it was terrible at it. We should let it get out of that business to the extent possible. As a religious person myself, I don't like it when the court decides how substantial a burden something is on my religious practices. How could the courts possibly assess that? I'd feel differently if I thought that religious groups were incapable of protecting their interests in the political arena. But that's hardly the case (before or after *Smith*). Religious rights groups have proven themselves quite capable of participating in the political economy just like every other lobbying group. But the nature of the political economy is that you win some and you lose some. And when it comes to balancing the interests in prohibiting discrimination and in women's health issues vs. religious liberty, I think the legislatures are at least as well situated to battle it out on those specific issues than the courts are. To illustrate: it strikes me that one of the reasons that we have a contraception mandate in the first place is that republicans basically decided not to participate in the crafting of health care reform, leaving it to democrats to cobble together the most left-leaning health care reform act they could pass at the time. That's a political choice, and they are entitled to it; surely had they succeeded in blocking passage altogether, it would look wise (from their perspective) in retrospect. But I suspect that had they opted instead to participate in the drafting, they could have slipped in some language that would have prevented the agency from imposing the mandate as part of some kind of bargain. I think Mark Scarberry is correct that these cases present a new sort of issue because they apparently pose a challenge to Catholic and evangelical Christian beliefs, who represent a huge swath of the population (unlike peyotists, orthodox jews, amish, santeriaists, and so on). That's all the more reason to believe that the political system ought to be able to sort this out. We aren't talking about insular minority groups, after all. Let the 2014 and 2016 elections be a referendum on the contraception mandate, in part. Let religious interest groups use this issue to get out their vote, just like those who advocate for anti-discrimination laws and contraception coverage can use it to get out theirs. That's a better idea than asking nine (very smart, but hardly apolitical) lawyers to fight it out. Further, I'm not moved by the argument that the logic for the contraception mandate could apply just as well to abortion. Under the Court's logic in *Sebelius*, Congress could impose a broccoli mandate (with a tax penalty) if it chose to, but it isn't going to because people aren't interested in a broccoli mandate. Congress can do all kinds of stupid things. The reason that it only does some of the stupid things that it *could* is that they answer (imperfectly, of course) to the people. The American people probably aren't interested in an abortion mandate, so it isn't going to happen. That's the bulwark; not the courts. These are political/policy questions, and I have no idea why anyone would think that the courts are particularly well situated to resolve them. To be clear, I'm not taking a substantive position on religious objections to the contraception mandate or anti-discrimination laws. I'm honestly not sure how I would vote on those as a legislator. It would likely depend on what the package being offered was and what I understood the reality of the situation to be. That's precisely the point: these are issues that a lot of people care a lot about. Let's not ask the courts to resolve them for us. Kicking this kind of question to the courts--which, again, have shown themselves to be terrible at dealing with them--through broad-sweeping RFRA type language seems to me an act of political cowardice. Sure, it is a nice club to bludgeon some government officials with, but that's not a very compelling argument for it. I don't blame the drafters and supporters of the original RFRAs, by the way. I supported RFRA at the time. But in retrospect, I surely wouldn't do it again given its possible reach. Each time Doug and others assure us that these new RFRAs really aren't that big of a deal because they only reach a small set of cases, I am left to wonder. How could we possibly know that to be the case? On Tue, Mar 11, 2014 at 4:53 PM, Berg, Thomas C. tcb...@stthomas.eduwrote: Mississippi does not have a law against sexual-orientation discrimination; if I understand the Lupu et al. letter correctly, the local resolutions in Oxford, Hattiesburg etc. are not laws. Therefore, whatever the motivations of the proponents of the Mississippi state RFRA, it seems the statute won't make any difference in the area of gay rights and religious objections. Isn't it more likely that a state RFRA in Mississippi would be used, say,
Re: letter opposing Mississippi RFRA
I appreciate the sentiment in opposition to Mississippi SB 2681 in that this law would provide protection for business owners who wanted to discriminate through their corporation. (I still can't see how this wouldn't signal a breach in the corporate veil as the ultimate expression of an alter ego, but I digress.) I'm reminded of a case I was involved with a few years ago represented a plaintiff who was a member of a religious minority, employed for a secular small company, who was terminated by her employer soon after the owner of the company received a memorandum from a trusted staff member expressing concern about religious influences that conflicted with the evangelical world view of the owner. Had an Arizona-style RFRA been in place, the employer would have used the law against my client as a defense, and could have claimed that he was in fact a victim of an attempt to force him to maintain the employment of people who did not share his (i.e. the company's) religious beliefs. Conceivably this type of event would be repeated over and over and the discrimination would become systematic. However there does not seem to be a need to diminish the existing individual religious exercise rights which are protected under the existing state RFRAs. In many ways, RFRAs for individuals (not businesses) are the guardians of individual rights to free exercise of religion. Michael Peabody, Esq. ReligiousLiberty.TV ___ 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.
Re: letter opposing Mississippi RFRA
I can say with supreme confidence that my religious group has not done a particularly good job representing my interests. They cannot, as they do not know me, and my sincere religious beliefs are in conflict in significant ways with other members of my religion. Even if I was within the majority of my group, however the political economy ends up slicing us up, that group would have done a remarkably poor job representing me several years ago when I was part of a different religious grouping. If courts are poor arbiters of what a qualifies substantial burden on my personal religious practicing, a legislature lobbied by the currently leading faction of a religious group is even worse! At the very least, in court, I, or my advocate, can stand for *my* beliefs, not the beliefs as found on the about page of a church website. Which is the same problem as anytime rights are granted to abstracted entities instead of to natural persons. Mr. Peabody (no relation to the dog, I assume) just illustrated it well: the religious rights of the self, trampled by the religious preferences of another. Whether against company boss or lobbyist, the individual's religious rights are their own. -Kevin Chen -Kevin Chen On Tue, Mar 11, 2014 at 5:41 PM, Michael Peabody mich...@californialaw.orgwrote: I appreciate the sentiment in opposition to Mississippi SB 2681 in that this law would provide protection for business owners who wanted to discriminate through their corporation. (I still can't see how this wouldn't signal a breach in the corporate veil as the ultimate expression of an alter ego, but I digress.) I'm reminded of a case I was involved with a few years ago represented a plaintiff who was a member of a religious minority, employed for a secular small company, who was terminated by her employer soon after the owner of the company received a memorandum from a trusted staff member expressing concern about religious influences that conflicted with the evangelical world view of the owner. Had an Arizona-style RFRA been in place, the employer would have used the law against my client as a defense, and could have claimed that he was in fact a victim of an attempt to force him to maintain the employment of people who did not share his (i.e. the company's) religious beliefs. Conceivably this type of event would be repeated over and over and the discrimination would become systematic. However there does not seem to be a need to diminish the existing individual religious exercise rights which are protected under the existing state RFRAs. In many ways, RFRAs for individuals (not businesses) are the guardians of individual rights to free exercise of religion. Michael Peabody, Esq. ReligiousLiberty.TV ___ 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.
FDA labeling for ella
Just to provide some factual information, here is the United States Food and Drug Administration's approved patient labeling for ella, which states: It is possible that ella may also work by preventing attachment (implantation) to the uterus. http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/022474s000lbl.pdf (last visited March 11, 2014). The FDA makes this point at two places, on pp. 5 9: 12.1 Mechanism of Action When taken immediately before ovulation is to occur, ella postpones follicular rupture. The likely primary mechanism of action of ulipristal acetate for emergency contraception is therefore inhibition or delay of ovulation; however, alterations to the endometrium that may affect implantation may also contribute to efficacy. Later in the labeling information, the FDA states: How does ella work? ella is thought to work for emergency contraception primarily by stopping or delaying the release of an egg from the ovary. It is possible that ella may also work by preventing attachment (implantation) to the uterus. Best, Kim Colby Director, Center for Law and Religious Freedom Christian Legal Society From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, March 11, 2014 3:44 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA Many thanks to Mark for this extremely interesting link. The article concludes with the following: If you can't be absolutely sure the drugs don't block implantation, what probability of killing a human being would you accept? said Dr Jane Orient, an internist in Tucson, Arizona, and spokeswoman for the libertarian, anti-abortion Association of American Physicians and Surgeons, which joined the anti-emergency contraceptive brief. I confess that I am left unpersuaded by such arguments. The first thing one learns in first-year torts-and I have often said that the course I took from Marc Franklin some 44 years ago was the best course I've ever had anywhere on any subject-is that we, as a society, constantly assume the risk that untoward things will happen to statistical people when, eg., building bridges, transporting goods across country, etc., etc., etc. No one who has even a modicum of sympathy with Calabresi's The Cost of Accidents, let alone the more hard-core versions of law and economics, would ever take seriously an argument that if you can't be absolutely sure that no one will die when building a tunnel or a skyscraper, then we should cancel the project? We accept the probability of killing a human being all the time, every single day. Would we allow, a la Thomas v Indiana, an employee for a trucking company to refuse to load truck (or fill the tanks with gas) because it is altogether predictable that some innocent lives will be lost as a result? As always, of course, we have no patience with such moral fastidiousness when the payment of taxes is at issue. We're all conscripted into the de facto sacrifice of innocent lives thanks to one or another state policy (including, most obviously, the use of force). If, of course, one determined that a particular drug operated to kill human beings frequently, that would be another matter. One would still like to see solid statistics instead of very bad philosoph-101 arguments like Dr. Orient's. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark R. Killenbeck Sent: Tuesday, March 11, 2014 2:27 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA On the science, see the Sharon Begley piece in Reuters, U.S. top court cases highlights unsettled science in contraception, noted by Howard Bashman in How Appealing: http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, March 11, 2014 2:02 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA I almost apologize for bringing this up, but I think that a key phrase in Mark's post is they sincerely think the drugs they must provide will sometimes cause abortions. It is not simply Marty's point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the sincerely think. I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not sometimes cause abortion. To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small
Re: letter opposing Mississippi RFRA
Thanks Brad. I'm still not sure I understand, though. You have helped me understand why, in the *absence* of a contraception mandate a religious employer with these beliefs would be obligated to choose not to cover contraception. But the contraception mandate doesn't allow the employer to choose whether contraception is covered. So in what way is the employer fully involved in the decision of what is being covered? On Tue, Mar 11, 2014 at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Tuesday, March 11, 2014 7:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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. -- 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.
Re: letter opposing Mississippi RFRA / FDA labeling for ella
I think it is difficult only because of the impossibly long, subjective, untestable stretch of the religious (not legal) complicity theory. If there is .1% chance of something happening, does that make one complicit in it? Does my paying taxes make me complicit in the 30,000 annual deaths on tax-funded highways? There is no legally congizable end to the complicity theory — leaving the courts to simply adopt whatever the adherent says it is. I hope this theory is soundly and completely rejected. And I generally support accommodations — even for the anti-gay photographer (I would do it not on religious grounds, but on speech grounds and on the grounds of the size of the business — have sympathy for the solo photographer that I do not have for Sears. Steve -- 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://iipsj.com/SDJ/ Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 On Mar 11, 2014, at 8:18 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: This is much more difficult than Sandy suggests. The skyscraper builder doesn’t accomplish its purpose through the death of a worker; that is, the worker’s death does not advance the building of the skyscraper. In fact, the death is likely to hinder the work. It is an unintended and unwanted side effect, one that the builder will take precautions against, even though the builder knows that the precautions will not prevent all accidental deaths on the project. By contrast, depending on how you define the purpose of a drug like ella, it accomplishes its purpose when it prevents – however rarely – implantation of a fertilized egg/embryo. If the person taking the drug simply doesn’t want to be pregnant, then prevention of implantation advances that purpose. My guess is that most women who take it – and most doctors who prescribe it, to the extent such drugs must be prescribed – won’t think it matters to any substantial degree whether the drug prevents fertilization or prevents implantation. (I don’t think I would, in their shoes, but I can’t be certain of it.) One who has the view that a fertilized egg/pre-implantation embryo is a very new human person entitled to life (which does not happen to be my view but is the view of people for whom I have great respect) would quite reasonably be morally troubled by being involved in the provision of drugs which accomplish their purpose, in some cases, through the killing of that very new person. The prevention of implantation/killing of the very new person is not an unwanted side effect; when it happens, rarely as that may be, it accomplishes the intended result. It is not, to use Sandy’s term, an “untoward” event. Suppose there was a test that could determine whether an egg had been fertilized. Does anyone think that most women who use ella (or doctors who prescribe it) would take (or order) the test? There is a willingness, one that I perfectly understand and do not personally find immoral (or at least seriously immoral), to prevent implantation, in the event that an egg has already been fertilized. Others find this tantamount to a willingness to kill an innocent child for the purpose of preventing or terminating (depending on your terminology and point of view) a pregnancy. If I am not willing to take this seriously, then I am not treating them with the respect that they deserve. List members may disagree with this analysis, but again this is much more difficult than Sandy suggests. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kim Colby Sent: Tuesday, March 11, 2014 3:29 PM To: Law Religion issues for Law Academics Subject: FDA labeling for ella Just to provide some factual information, here is the United States Food and Drug Administration’s approved patient labeling for ella, which states: “It is possible that ella may also work by preventing attachment (implantation) to the uterus.” http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/022474s000lbl.pdf (last visited March 11, 2014). The FDA makes this point at two places, on pp. 5 9: “12.1 Mechanism of Action When taken immediately before ovulation is to occur, ella postpones follicular rupture. The likely primary mechanism of action of ulipristal acetate for emergency contraception is therefore
Re: letter opposing Mississippi RFRA
I don't recall the case name, but it involved a Jehovas Witness and her child. The child needed life saving surgery that would necessarily involve blood transfusion, so the mother refused to consent. The judge in the case speculated that the mother actually wanted the surgery to go through, but she felt a religious imperative to refuse. For some the obligation to avoid includes resisting authority until at least directed by the highest legal courts. -Kevin Chen On Tue, Mar 11, 2014 at 9:36 PM, Hillel Y. Levin hillelle...@gmail.comwrote: Thanks Brad. I'm still not sure I understand, though. You have helped me understand why, in the *absence* of a contraception mandate a religious employer with these beliefs would be obligated to choose not to cover contraception. But the contraception mandate doesn't allow the employer to choose whether contraception is covered. So in what way is the employer fully involved in the decision of what is being covered? On Tue, Mar 11, 2014 at 9:26 PM, Brad Pardee bp51...@windstream.netwrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Tuesday, March 11, 2014 7:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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. -- 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. ___ 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.
Re: letter opposing Mississippi RFRA
I can get behind liberty. Can you (and others) get behind equality? I try to speak for others only when asked. And my answer is maybe. Liberty is hard to nail down, but equality is even more ephemeral. At the very least, a diverse society where all citizens have an equal right to be wrong seems like a good start. -KC On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? Often they work together, but sometimes they are in serious conflict. State sanctioned liberty to exclude and discriminate against denies equality to some. State sanctioned and enforced equality limits the liberty of some who want to be free to exclude on liberty grounds. State prohibition of discrimination on the basis of race, gender, age, and religion mean in no small part those people are at liberty to do things and to participate in things they could not without the anti-discrimination laws -- so it increases their liberty (and equality) at the expense of some liberty of others who want to treat some as less equal. It is not an easy calculus nor is consistency possible. But there are values in the constitution beyond liberty and free exercise. Steve -- 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://iipsj.com/SDJ/ I don't know whether the world is full of smart men bluffing or imbeciles who mean it. -- Morrie Brickman On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote: I indulge in the fantasy that liberty is a founding belief that we all can believe in and come to reasonable compromise but reality continuously disabuses me of the notion. ___ 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.
RE: letter opposing Mississippi RFRA
Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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.
Mandatory Insurance Coverage of Abortion
Hillel Levin writes: Further, I'm not moved by the argument that the logic for the contraception mandate could apply just as well to abortion. Under the Court's logic in Sebelius, Congress could impose a broccoli mandate (with a tax penalty) if it chose to, but it isn't going to because people aren't interested in a broccoli mandate. The prospect of a mandate to cover abortion is (at least in some states) far more likely than the broccoli-mandate notion. The Washington state House just passed such a mandate on all insurers that provide coverage for maternity care. Although it appears the bill will not get through the Senate, our recent discussions suggest that bills that pass one house of a state legislature are very much in political play and warrant serious consideration. (I'm assuming that a mandate on insurers in Washington would put substantial economic pressure on many employers, including many religious non-profits; the self-insurance alternative might be available, I'm assuming-at least, under this bill, for right now-but self-insuring is difficult for smaller employers.) Text of bill (as best I can tell): http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/House%20Bills/2148.pdf Seattle Times: http://seattletimes.com/html/localnews/2022845818_rpapassesxml.html The bill contains an exception, in section 7(a), for a religiously sponsored health carrier that objects to covering abortion. But if I correctly understand the position of some on the list-and some briefs filed in Hobby Lobby-this exemption may violate the Establishment Clause, in their view, because it allows a religiously grounded exception, in the insurance market, to covering a service that the legislature has otherwise determined is a statutory entitlement. Is that correct? I share Hillel's view that religious individuals and groups are often able to protect themselves in the political process (FWIW, I also share his view that Republicans would have done better to work with Democrats in the drafting of the Affordable Care Act). But the position that exemptions in the for-profit sphere violate the Establishment Clause would prohibit, I think, a significant number of the political compromises/protections in which Hillel places stock. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 4:38 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA The Supreme Court tried to step out of the interest-balancing business in Smith, in part because it was terrible at it. We should let it get out of that business to the extent possible. As a religious person myself, I don't like it when the court decides how substantial a burden something is on my religious practices. How could the courts possibly assess that? I'd feel differently if I thought that religious groups were incapable of protecting their interests in the political arena. But that's hardly the case (before or after Smith). Religious rights groups have proven themselves quite capable of participating in the political economy just like every other lobbying group. But the nature of the political economy is that you win some and you lose some. And when it comes to balancing the interests in prohibiting discrimination and in women's health issues vs. religious liberty, I think the legislatures are at least as well situated to battle it out on those specific issues than the courts are. To illustrate: it strikes me that one of the reasons that we have a contraception mandate in the first place is that republicans basically decided not to participate in the crafting of health care reform, leaving it to democrats to cobble together the most left-leaning health care reform act they could pass at the time. That's a political choice, and they are entitled to it; surely had they succeeded in blocking passage altogether, it would look wise (from their perspective) in retrospect. But I suspect that had they opted instead to participate in the drafting, they could have slipped in some language that would have prevented the agency from imposing the mandate as part of some kind of bargain. I think Mark Scarberry is correct that these cases present a new sort of issue because they apparently pose a challenge to Catholic and evangelical Christian beliefs, who represent a huge swath of the population
Re: letter opposing Mississippi RFRA
Except that the employer is not involved in determining the range of benefits any more than it determines the minimum wage-- the preventive services are required by law to be in all plans. Sent from my iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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.
Re: letter opposing Mississippi RFRA
I can get behind liberty. Can you (and others) get behind equality? Often they work together, but sometimes they are in serious conflict. State sanctioned liberty to exclude and discriminate against denies equality to some. State sanctioned and enforced equality limits the liberty of some who want to be free to exclude on liberty grounds. State prohibition of discrimination on the basis of race, gender, age, and religion mean in no small part those people are at liberty to do things and to participate in things they could not without the anti-discrimination laws — so it increases their liberty (and equality) at the expense of some liberty of others who want to treat some as less equal. It is not an easy calculus nor is consistency possible. But there are values in the constitution beyond liberty and free exercise. Steve -- 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://iipsj.com/SDJ/ I don't know whether the world is full of smart men bluffing or imbeciles who mean it. -- Morrie Brickman On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote: I indulge in the fantasy that liberty is a founding belief that we all can believe in and come to reasonable compromise but reality continuously disabuses me of the notion. ___ 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.
Re: letter opposing Mississippi RFRA
I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? Often they work together, but sometimes they are in serious conflict. State sanctioned liberty to exclude and discriminate against denies equality to some. State sanctioned and enforced equality limits the liberty of some who want to be free to exclude on liberty grounds. State prohibition of discrimination on the basis of race, gender, age, and religion mean in no small part those people are at liberty to do things and to participate in things they could not without the anti-discrimination laws -- so it increases their liberty (and equality) at the expense of some liberty of others who want to treat some as less equal. It is not an easy calculus nor is consistency possible. But there are values in the constitution beyond liberty and free exercise. Steve -- 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://iipsj.com/SDJ/ I don't know whether the world is full of smart men bluffing or imbeciles who mean it. -- Morrie Brickman On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote: I indulge in the fantasy that liberty is a founding belief that we all can believe in and come to reasonable compromise but reality continuously disabuses me of the notion. ___ 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. -- 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.
Re: letter opposing Mississippi RFRA
The Supreme Court has not done a great job. The legislatures have generally done a worse job. Legislators are unable to make principled decisions with respect to unpopular groups. They have little time to devote to these issues. They often vote out of party loyalty, or on the basis of what they are told by a lobbyist. Committee members wander in and out of hearings. Some examples, off the top of my head: Church of the Lukumi v. Hialeah: 9-0 to protect a small and unpopular religion from discriminatory ordinances in the Supreme Court; 434-1 the other way in the House of Representatives. When Steve Solarz wrote his colleagues about a congressional amicus brief in Lukumi, he couldn't get a single office to even talk to him. Something like 46 states have enacted statutory exemptions for parents who withhold medical care from children on religious grounds. No court has even done that under a constitutional or RFRA standard, and I find it impossible to imagine that any court would do that. Courts have confined these exemptions to abuse and neglect laws, interpreting often ambiguous language not to apply to homicide laws if the child dies. Nearly every state has enacted exemptions from vaccination laws, available for the asking, without even a sincerity requirement, despite the obvious free-rider problem and the risk imposed on those whose vaccination is old and fading or didn't take in the first place. Again, it is hard to imagine a court doing that. In Gonzalez v. UDV, the trial court held a nine-day hearing on the alleged dangers of hoasca, after giving the parties a year to prepare. Congress had heard a sentence or two of testimony about the active ingredient, as best I can recall; if it was a paragraph or two, the point would not be changed. The congressional committee reports on RFRA found that the legislative process cannot deal with these cases, and they were right about that. On Tue, 11 Mar 2014 18:35:54 -0400 Hillel Y. Levin hillelle...@gmail.com wrote: The Supreme Court has done an awful job of protecting religious practices. The legislature has been far more accommodating. On Tuesday, March 11, 2014, K Chen tzn...@gmail.com wrote: I can say with supreme confidence that my religious group has not done a particularly good job representing my interests. They cannot, as they do not know me, and my sincere religious beliefs are in conflict in significant ways with other members of my religion. Even if I was within the majority of my group, however the political economy ends up slicing us up, that group would have done a remarkably poor job representing me several years ago when I was part of a different religious grouping. If courts are poor arbiters of what a qualifies substantial burden on my personal religious practicing, a legislature lobbied by the currently leading faction of a religious group is even worse! At the very least, in court, I, or my advocate, can stand for *my* beliefs, not the beliefs as found on the about page of a church website. Which is the same problem as anytime rights are granted to abstracted entities instead of to natural persons. Mr. Peabody (no relation to the dog, I assume) just illustrated it well: the religious rights of the self, trampled by the religious preferences of another. Whether against company boss or lobbyist, the individual's religious rights are their own. -Kevin Chen -Kevin Chen On Tue, Mar 11, 2014 at 5:41 PM, Michael Peabody mich...@californialaw.orgjavascript:_e(%7B%7D,'cvml','mich...@californialaw.org'); wrote: I appreciate the sentiment in opposition to Mississippi SB 2681 in that this law would provide protection for business owners who wanted to discriminate through their corporation. (I still can't see how this wouldn't signal a breach in the corporate veil as the ultimate expression of an alter ego, but I digress.) I'm reminded of a case I was involved with a few years ago represented a plaintiff who was a member of a religious minority, employed for a secular small company, who was terminated by her employer soon after the owner of the company received a memorandum from a trusted staff member expressing concern about religious influences that conflicted with the evangelical world view of the owner. Had an Arizona-style RFRA been in place, the employer would have used the law against my client as a defense, and could have claimed that he was in fact a victim of an attempt to force him to maintain the employment of people who did not share his (i.e. the company's) religious beliefs. Conceivably this type of event would be repeated over and over and the discrimination would become systematic. However there does not seem to be a need to diminish the existing individual religious exercise rights which are protected under the existing state RFRAs. In many ways, RFRAs for individuals (not businesses) are the guardians of individual rights to free exercise of
Re: Mandatory Insurance Coverage of Abortion
Thomas: Thanks for that thoughtful analysis. I wasn't aware of that bill. I think religious groups that oppose abortion should vigorously oppose it, and I think they will win. It isn't easy to pass controversial legislation in the face of focused, determined opposition, particularly concerning a political football like abortion. FWIW I didn't sign the Establishment clause brief, and I think the argument you spin out helps to explain why: I'm in favor of the political process, except where it is broken. Messy compromises are a sign that it is working. Religious groups are natural political allies with other groups that care about individual liberty. I fear, however, that by working stridently against gay rights groups on these new RFRA bills they will sacrifice the long term viability of those alliances. Sophisticated lobbying groups pick their battles. On Tue, Mar 11, 2014 at 8:26 PM, Berg, Thomas C. tcb...@stthomas.eduwrote: Hillel Levin writes: Further, I'm not moved by the argument that the logic for the contraception mandate could apply just as well to abortion. Under the Court's logic in *Sebelius*, Congress could impose a broccoli mandate (with a tax penalty) if it chose to, but it isn't going to because people aren't interested in a broccoli mandate. The prospect of a mandate to cover abortion is (at least in some states) far more likely than the broccoli-mandate notion. The Washington state House just passed such a mandate on all insurers that provide coverage for maternity care. Although it appears the bill will not get through the Senate, our recent discussions suggest that bills that pass one house of a state legislature are very much in political play and warrant serious consideration. (I'm assuming that a mandate on insurers in Washington would put substantial economic pressure on many employers, including many religious non-profits; the self-insurance alternative might be available, I'm assuming--at least, under this bill, for right now--but self-insuring is difficult for smaller employers.) Text of bill (as best I can tell): http://apps.leg.wa.gov/documents/billdocs/2013-14/Pdf/Bills/House%20Bills/2148.pdf Seattle Times: http://seattletimes.com/html/localnews/2022845818_rpapassesxml.html The bill contains an exception, in section 7(a), for a religiously sponsored health carrier that objects to covering abortion. But if I correctly understand the position of some on the list--and some briefs filed in Hobby Lobby--this exemption may violate the Establishment Clause, in their view, because it allows a religiously grounded exception, in the insurance market, to covering a service that the legislature has otherwise determined is a statutory entitlement. Is that correct? I share Hillel's view that religious individuals and groups are often able to protect themselves in the political process (FWIW, I also share his view that Republicans would have done better to work with Democrats in the drafting of the Affordable Care Act). But the position that exemptions in the for-profit sphere violate the Establishment Clause would prohibit, I think, a significant number of the political compromises/protections in which Hillel places stock. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author=261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Tuesday, March 11, 2014 4:38 PM *To:* Law Religion issues for Law Academics *Subject:* Re: letter opposing Mississippi RFRA The Supreme Court tried to step out of the interest-balancing business in *Smith*, in part because it was terrible at it. We should let it get out of that business to the extent possible. As a religious person myself, I don't like it when the court decides how substantial a burden something is on my religious practices. How could the courts possibly assess that? I'd feel differently if I thought that religious groups were incapable of protecting their interests in the political arena. But that's hardly the case (before or after *Smith*). Religious rights groups have proven themselves quite capable of participating in the political economy just like every other lobbying group. But the nature of the political economy is that you win some and you lose some. And when it comes to balancing the interests in prohibiting discrimination and in women's health issues vs. religious liberty, I think the legislatures are at least as well
RE: letter opposing Mississippi RFRA
I'm curious about something in your letter. Toward the end, you say, Article 3, section 18 of the Constitution of Mississippi already protects as sacred 'the free enjoyment of all religious sentiments and the different modes of worship.' Senate Bill 2681 is unnecessary to protect freedom of belief and worship in Mississippi, and potentially quite harmful. It appears that you are suggesting that religiious liberty simply requires that a person be allowed to believe what they do and to worship however they do. That seems like a very very narrow characterization of religious liberty. The 1st Amendment specifically talks about free exercise, not merely freedom of belief and worship. What would you say that free exercise refers to when it says it is to be protected? Brad Pardee From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 11:21 AM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- 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.
Re: letter opposing Mississippi RFRA
To shift Sandy’s tort analogy — if you walk the streets of NYC at rush hour you have to expect to get jostled by the crowd and not every touching is therefore an actionable battery. When Hobby Lobby and Notre Dame choose to walk the streets, they assume the risk of some jostling. Steve -- 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://iipsj.com/SDJ/ -- Become the change you seek in the world. -- Mahatma Gandhi. On Mar 11, 2014, at 3:44 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Many thanks to Mark for this extremely interesting link. The article concludes with the following: If you can't be absolutely sure the drugs don't block implantation, what probability of killing a human being would you accept? said Dr Jane Orient, an internist in Tucson, Arizona, and spokeswoman for the libertarian, anti-abortion Association of American Physicians and Surgeons, which joined the anti-emergency contraceptive brief. I confess that I am left unpersuaded by such arguments. The first thing one learns in first-year torts—and I have often said that the course I took from Marc Franklin some 44 years ago was the best course I’ve ever had anywhere on any subject—is that we, as a society, constantly “assume the risk” that untoward things will happen to statistical people when, eg., building bridges, transporting goods across country, etc., etc., etc. No one who has even a modicum of sympathy with Calabresi’s The Cost of Accidents, let alone the more hard-core versions of law and economics, would ever take seriously an argument that “if you can’t be absolutely sure that no one will die when building a tunnel or a skyscraper, then we should cancel the project”? We accept the “probability of killing a human being” all the time, every single day. Would we allow, a la Thomas v Indiana, an employee for a trucking company to refuse to load truck (or fill the tanks with gas) because it is altogether predictable that some innocent lives will be lost as a result? As always, of course, “we” have no patience with such moral fastidiousness when the payment of taxes is at issue. We’re all conscripted into the de facto sacrifice of innocent lives thanks to one or another state policy (including, most obviously, the use of force). If, of course, one determined that a particular drug operated to “kill human beings” frequently, that would be another matter. One would still like to see solid statistics instead of very bad philosoph-101 arguments like Dr. Orient’s. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Mark R. Killenbeck Sent: Tuesday, March 11, 2014 2:27 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA On the science, see the Sharon Begley piece in Reuters, “U.S. top court cases highlights unsettled science in contraception,” noted by Howard Bashman in How Appealing: http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf OfLevinson, Sanford V Sent: Tuesday, March 11, 2014 2:02 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA I almost apologize for bringing this up, but I think that a key phrase in Mark’s post is “they sincerely think the drugs they must provide will sometimes cause abortions.” It is not simply Marty’s point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the “sincerely think.” I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not “sometimes cause abortion.” To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small minority of outliers in the scientific community. If we’re not talking about “outliers,” of course, that’s a different matter. I take it that the current trial in Michigan is very much about the deference to be paid outliers. (I am fully aware, of course, that occasional “outliers” turn out to be correct, “ahead of their time” in battling conventional wisdom. But I suspect that such “success stories” are few and far between and that most outliers are more likely to be cranks or ideologues. (Consider someone who believes we have a significantly defective Constitution, and that we need a new constitutional convention to correct the problems J) Things get
RE: letter opposing Mississippi RFRA / FDA labeling for ella
This is much more difficult than Sandy suggests. The skyscraper builder doesn't accomplish its purpose through the death of a worker; that is, the worker's death does not advance the building of the skyscraper. In fact, the death is likely to hinder the work. It is an unintended and unwanted side effect, one that the builder will take precautions against, even though the builder knows that the precautions will not prevent all accidental deaths on the project. By contrast, depending on how you define the purpose of a drug like ella, it accomplishes its purpose when it prevents - however rarely - implantation of a fertilized egg/embryo. If the person taking the drug simply doesn't want to be pregnant, then prevention of implantation advances that purpose. My guess is that most women who take it - and most doctors who prescribe it, to the extent such drugs must be prescribed - won't think it matters to any substantial degree whether the drug prevents fertilization or prevents implantation. (I don't think I would, in their shoes, but I can't be certain of it.) One who has the view that a fertilized egg/pre-implantation embryo is a very new human person entitled to life (which does not happen to be my view but is the view of people for whom I have great respect) would quite reasonably be morally troubled by being involved in the provision of drugs which accomplish their purpose, in some cases, through the killing of that very new person. The prevention of implantation/killing of the very new person is not an unwanted side effect; when it happens, rarely as that may be, it accomplishes the intended result. It is not, to use Sandy's term, an untoward event. Suppose there was a test that could determine whether an egg had been fertilized. Does anyone think that most women who use ella (or doctors who prescribe it) would take (or order) the test? There is a willingness, one that I perfectly understand and do not personally find immoral (or at least seriously immoral), to prevent implantation, in the event that an egg has already been fertilized. Others find this tantamount to a willingness to kill an innocent child for the purpose of preventing or terminating (depending on your terminology and point of view) a pregnancy. If I am not willing to take this seriously, then I am not treating them with the respect that they deserve. List members may disagree with this analysis, but again this is much more difficult than Sandy suggests. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Kim Colby Sent: Tuesday, March 11, 2014 3:29 PM To: Law Religion issues for Law Academics Subject: FDA labeling for ella Just to provide some factual information, here is the United States Food and Drug Administration's approved patient labeling for ella, which states: It is possible that ella may also work by preventing attachment (implantation) to the uterus. http://www.accessdata.fda.gov/drugsatfda_docs/label/2010/022474s000lbl.pdf (last visited March 11, 2014). The FDA makes this point at two places, on pp. 5 9: 12.1 Mechanism of Action When taken immediately before ovulation is to occur, ella postpones follicular rupture. The likely primary mechanism of action of ulipristal acetate for emergency contraception is therefore inhibition or delay of ovulation; however, alterations to the endometrium that may affect implantation may also contribute to efficacy. Later in the labeling information, the FDA states: How does ella work? ella is thought to work for emergency contraception primarily by stopping or delaying the release of an egg from the ovary. It is possible that ella may also work by preventing attachment (implantation) to the uterus. Best, Kim Colby Director, Center for Law and Religious Freedom Christian Legal Society From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Tuesday, March 11, 2014 3:44 PM To: Law Religion issues for Law Academics Subject: RE: letter opposing Mississippi RFRA Many thanks to Mark for this extremely interesting link. The article concludes with the following: If you can't be absolutely sure the drugs don't block implantation, what probability of killing a human being would you accept? said Dr Jane Orient, an internist in Tucson, Arizona, and spokeswoman for the libertarian, anti-abortion Association of American Physicians and Surgeons, which joined the anti-emergency contraceptive brief. I confess that I am left unpersuaded by such arguments. The first thing one learns in first-year torts-and I have often said that the course I took from Marc Franklin some 44 years ago was the best course I've ever had anywhere on any subject-is that we, as a society, constantly assume the risk that untoward
Re: letter opposing Mississippi RFRA
Tom Berg writes that there are costs to opposing RFRAs, by which he seems to mean there are benefits for religious minorities to having RFRA's. Could be, of course. But look at his two generic examples: 1. Perhaps a state RFRA in Mississippi would be used, say, by a mosque to protect itself from indifference or cloaked discrimination that might not be reachable under Employment Division v. Smith. Tom, do you have an example of a law or public action that fits this description but does not violate the state constitution, the Free Exercise Clause, or (probably most important) federal RLUIPA, which protects Muslim prisoners, and protects mosques in their land uses? I don't mean can you make one up -- I mean can you identify such an action in MS, or elsewhere, that would violate RFRA but not those other sources of religious freedom? It would be good to have such a concrete example. 2. Tom expresses concern about religious non-profits, and wonders whether the signatories of our MS letter oppose exemptions from anti-discrimination laws for those entities. I can't speak for others, but I will say that MS has no state-wide prohibition on private discrimination, including racial discrimination, in any form of commercial interaction -- employment, housing, or access to public accommodations (narrowly understood, hotels and restaurants). Is it imaginable that such a state would 1) suddenly enact sweeping nondiscrimination laws and 2) not exempt religious organizations in the ways that all other exempt them -- e.g., that they are free to hire and fire based on faith and compliance with faith? Worrying about the cutting edge case in NY or MA -- married student housing in religious colleges -- just seems incredible to me in the context of a state that outlaws so little discrimination of any kind. In such a state, a RFRA passed at this moment, in this political and legal climate, can only be understood as being in anticipation of a day when marriage equality comes to Mississippi by court order, and (maybe -- how will this happen?) civil rights laws get enacted, AND they cover the LGBT community, AND they cover all goods and services, and a wedding vendor or marriage license clerk does not want to serve a same sex couple. Is there anything else driving this Bill in Mississippi besides this kind of anticipation and fear? On Tue, Mar 11, 2014 at 4:53 PM, Berg, Thomas C. tcb...@stthomas.eduwrote: Mississippi does not have a law against sexual-orientation discrimination; if I understand the Lupu et al. letter correctly, the local resolutions in Oxford, Hattiesburg etc. are not laws. Therefore, whatever the motivations of the proponents of the Mississippi state RFRA, it seems the statute won't make any difference in the area of gay rights and religious objections. Isn't it more likely that a state RFRA in Mississippi would be used, say, by a mosque to protect itself from indifference or cloaked discrimination that might not be reachable under Employment Division v. Smith--or by other religious organizations to protect themselves from a variety of other non-tolerant things that officials in Mississippi have been known to do? (This is not a case like Arizona, where a state RFRA already existed; and unless I'm mistaken, Mississippi's free exercise clause has not been interpreted yet on the question whether claims of substantial burdens on religious exercise deserve any heightened scrutiny.) I want to emphasize that I, like the signers of the Lupu et al. letter (p. 4), would like to see a state like Mississippi adopt enforceable policy at the state and local level protecting gays and lesbians from discrimination. I don't know if it ever has a chance of happening. But one way to guarantee it won't happen is to suggest that there can be no exemptions from such laws in the statute itself or under a general religious-freedom act. (Although the Lupu letter frequently refers to discrimination by for-profit businesses, it also speaks more generally of rejecting exemptions from civil rights laws, which could mean no exemptions for religious non-profit organizations either. I wonder whether the signers of the letter think, for example, that if a state law prohibits sexual-orientation discrimination in housing including educational housing, an evangelical or Orthodox Jewish college that provides married-student housing but excludes same-sex married couples cannot be exempted, because it's violating a statutorily-declared civil right?) There are complexities in the way these battles play out politically. Those of us who have argued for several years for exemptions accompanying same-sex marriage enactments in the blue states have done so with the feeling that in those states, with marriage equality enacted and with wide-ranging anti-discrimination laws, the objectors would become the minority needing protection. So we've sought to protect religious organizations, as
Re: letter opposing Mississippi RFRA
Still complicit--the employer knows the wages will sometimes be spent on things the employer dislikes just as much as the employer knows some employees will use insurance for things the employer dislikes. If the theory is complicity, that line is a pretty lame one. Sent from Steve's iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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.
Re: letter opposing Mississippi RFRA
Cryptic. Equal right to be wrong is a good start at what? That is not taking equality seriously and horribly undervalues what the civil war meant and that the 14th amendment is just as much a part of the constitution as the 1st and 5th. Sent from Steve's iPhone On Mar 11, 2014, at 10:02 PM, K Chen tzn...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? I try to speak for others only when asked. And my answer is maybe. Liberty is hard to nail down, but equality is even more ephemeral. At the very least, a diverse society where all citizens have an equal right to be wrong seems like a good start. -KC On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? Often they work together, but sometimes they are in serious conflict. State sanctioned liberty to exclude and discriminate against denies equality to some. State sanctioned and enforced equality limits the liberty of some who want to be free to exclude on liberty grounds. State prohibition of discrimination on the basis of race, gender, age, and religion mean in no small part those people are at liberty to do things and to participate in things they could not without the anti-discrimination laws — so it increases their liberty (and equality) at the expense of some liberty of others who want to treat some as less equal. It is not an easy calculus nor is consistency possible. But there are values in the constitution beyond liberty and free exercise. Steve -- 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://iipsj.com/SDJ/ I don't know whether the world is full of smart men bluffing or imbeciles who mean it. -- Morrie Brickman On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote: I indulge in the fantasy that liberty is a founding belief that we all can believe in and come to reasonable compromise but reality continuously disabuses me of the notion. ___ 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.
RE: letter opposing Mississippi RFRA
I think history is replete with examples of people who defended their actions by saying, I was just following orders, but we rarely if ever accept that defense. The only difference is that, in this instance, the orders are coming from Congress. The Fugitive Slave Law of 1850 is a fair comparison, with the only real difference being that today we all uniformly believe that slavery is wrong but there is not similar uniform belief regarding contraception. The fact remains that the law didn't allow a person to choose whether to return an escaped slave, but the person is still fully involved in the decision to return the escaped slave. Quakers and other abolitionists whose beliefs were formed by the Great Awakening were aware of the requirements of the law, but their faith required otherwise. It may be that, in the current day and on this issue, the government is more able to compel a person to violate the requirements of their faith. The contraceptive mandate, however, is no less a violation of a person's free exercise of religion than the Fugitive Slave Law was. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 8:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Thanks Brad. I'm still not sure I understand, though. You have helped me understand why, in the absence of a contraception mandate a religious employer with these beliefs would be obligated to choose not to cover contraception. But the contraception mandate doesn't allow the employer to choose whether contraception is covered. So in what way is the employer fully involved in the decision of what is being covered? From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Tuesday, March 11, 2014 8:43 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Except that the employer is not involved in determining the range of benefits any more than it determines the minimum wage-- the preventive services are required by law to be in all plans. ___ 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.
Re: letter opposing Mississippi RFRA
The line is between benefits that are earmarked for a particular item and wages that are not. It is between what the employer purchases himself, and what the employee purchases. First you wildly exaggerate their claim, then you say that the exaggerated claim is ridiculous, then you infer that the actual claim is also ridiculous. Which is not to say that some of the people on the religious fringes, both left and right, don't make wildly exaggerated claims. But no religious claimant has ever won on a claim about the use of money paid over without restriction to someone else. The only claim of that sort I can think of is claims about paying taxes that the government then spends for immoral purposes. Zero for however many times they have tried. On Tue, 11 Mar 2014 22:17:40 -0400 Steven Jamar stevenja...@gmail.com wrote: Still complicit--the employer knows the wages will sometimes be spent on things the employer dislikes just as much as the employer knows some employees will use insurance for things the employer dislikes. If the theory is complicity, that line is a pretty lame one. Sent from Steve's iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
Re: letter opposing Mississippi RFRA
The employer does not earmark any benefits as being for contraception. (Indeed, not even the plan does so.) Nor does the employer purchase contraception. An employer that does not offer a health care plan will pay its employees more in wages. (It's all a form of compensation for labor.) Those employees will inevitably use those extra wages for health care, including contraception. An employer may choose, however, to replace some of those wages with a health insurance plan -- a substitute form of compensation. Of course, an employee who receives this alternative form of compensation cannot use it for anything under the sun -- not baseball tickets, not hamburgers. But she can purchase tens or hundreds of thousands of different medical services, of which contraception is a small subset. And she'll be reimbursed for those medical services by the plan, whichever she happens to use. *The employee *decides what to earmark, just as she does with wages -- she simply has a somewhat less unlimited, yet still vast, set of choices. On Tue, Mar 11, 2014 at 10:35 PM, Douglas Laycock dlayc...@virginia.eduwrote: The line is between benefits that are earmarked for a particular item and wages that are not. It is between what the employer purchases himself, and what the employee purchases. First you wildly exaggerate their claim, then you say that the exaggerated claim is ridiculous, then you infer that the actual claim is also ridiculous. Which is not to say that some of the people on the religious fringes, both left and right, don't make wildly exaggerated claims. But no religious claimant has ever won on a claim about the use of money paid over without restriction to someone else. The only claim of that sort I can think of is claims about paying taxes that the government then spends for immoral purposes. Zero for however many times they have tried. On Tue, 11 Mar 2014 22:17:40 -0400 Steven Jamar stevenja...@gmail.com wrote: Still complicit--the employer knows the wages will sometimes be spent on things the employer dislikes just as much as the employer knows some employees will use insurance for things the employer dislikes. If the theory is complicity, that line is a pretty lame one. Sent from Steve's iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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
Re: letter opposing Mississippi RFRA
Say you support Free Exercise regulatory exemptions but you don’t support the claims in Hobby Lobby (or the other for-profit/commercial/complicity claims, like Elane Photography ). In deciding what to think of state RFRAs, you might be interested in proportions. Only a tiny fraction of state RFRA cases have involved those kinds of issues. I’d say there have been around a couple hundred state RFRA cases, which sounds like a lot but is only probably around 1 or 2 cases per state per year. Yet I only know of one decided state RFRA case— Elane Photography— about this kind of thing. There may be other cases I don’t know about; there certainly have been controversies apart from litigation; and I expect there will be at least a few more cases in the future. But I still think that the number of Elane Photography cases is going to be small relative to the universe of state RFRA cases. So we should keep in mind some quite sympathetic state RFRA cases, some of quite recent stripe: the Native American student who got the right to wear his hair long in A.A. v. Needville Indep. School Dist ., 611 F.3d 248 (5th Cir. 2010), the Santeria folks who got to continue their religious rituals sacrificing animals in Merced v. Kasson , 577 F.3d 578 (5th Cir. 2009), the Jehovah’s Witness who got a bloodless liver transplant that was necessary to keep her alive in Stinemetz v. KHPA , 252 P.3d 141 (Kan. App. 2011). Or while we’re talking Mississippi, consider the leading Mississippi Free Exercise case which happened back in the 1980s. It involved a Jehovah’s Witness who had been shot by her daughter. Her chances in surgery were fair even without a blood transfusion, and she insisted she would rather die than get a blood transfusion and be damned for eternity. But the local DA insisted that she was needed to testify in court to the daughter’s crime and he didn’t want to take any chances, so he physically compelled her into having that blood transfusion despite her religious objections. (It’s not clear to me why the DA insisted on this course of action—this isn’t addressed in the case, but she was apparently conscious and able to communicate, and any out-of-court statement identifying the daughter as the shooter would have been admissible under both the Mississippi Rules of Evidence and the federal Constitution.) Probably no one on the listserv believes what that Jehovah's Witness believed, but we all can recognize the extraordinary psychic distress she was put through. (And still is in, presumably, if she is still alive—she apparently really did believe she was unalterably doomed to hell because of what the state did to her.) There are a lot of state RFRA cases that pull at heartstrings. The modern fights over sexual morality get a lot of airplay. But they represent a sliver of the cases. Liberals have always been sympathetic to the plight of minorities, and the larger context here is that religious minorities will often have a very difficult time without legislative exemptions in a world run pursuant to Employment Division v. Smith . (And also, to respond overly briefly to something Hillel Levin said earlier, I think the one-off nature of these issues illustrates just how hard it would be to handle this with case-by-case exemptions passed in advance.) I have mixed feelings in Hobby Lobby ; I didn’t sign a brief on either side. But if the plaintiffs’ claims are decisively rejected, one virtue will be that the discussion might focus back to these other kinds of claims. Best, Chris - Original Message - From: Alan Brownstein aebrownst...@ucdavis.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, March 11, 2014 3:47:04 PM Subject: RE: letter opposing Mississippi RFRA Well, of course, one of the reasons that RFRA was originally supported by a broad coalition and RLUIPA received broad support as well was that not everyone thought that religious accommodations on a case-by-case basis worked reasonably well. Obtaining accommodations politically case-by-case required the expenditure of enormous time, effort, and political capital – and even when those requesting accommodations were able to marshal such efforts, some requested accommodations were denied for reasons that at their best and most charitably could only be described as completely unpersuasive. And a political case-by-case approach maximizes the opportunity for religious favoritism to influence decision-making. I understand the concerns expressed here and elsewhere about these new RFRA like laws and the motivations of their sponsors. But there were problems that justified support for more general religious liberty statutes 20 years ago and it is not at all clear to me that those problems have disappeared. It is one thing to argue that the cost/risk of protecting discrimination in the for profit commercial sector outweighs the religious liberty benefits of
Re: letter opposing Mississippi RFRA
The Civil War? The thing where our nation split apart and brother killed brother on a then unimaginable scale due to longstanding issues baked into the fabric (and constitution!) of our nation involving total enslavement of certain people? And I am undervaluing its meaning because I gave a cryptic answer? At first I assumed I had fallen into cross-fire between you and an ideological opponent, but I was directly quoted, so I remain perplexed. Equality isn't actually the value upheld in Amendment XIV which reads in relevant part All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. If you'll pardon the digression into Lincoln-Douglas debate, equality is not the highest moral value supported here, Amendment XIV proclaims equality before the law. Not a whit about, for example, equal power in society, equal wages, or equal access to the best teachers, or equal testing by those teachers. Upholding equality has remarkably different outcomes for, say, the handicapped, depending on how equal is interpreted. Equality is nebulous concept and upholding it without an attempt at detail I have no idea what good bad ideas or bad ideas are going to come about. (Liberty is also susceptible, so my apologies if I fell into argument-by-catchphrase somewhere). I'm not going to pretend I know exactly how the balance the interests of religious believers and other marginalized persons. Like every lawyer, I find it much easier to tear apart ideas submitted by others. I'm not even convinced that the frame is a sensible one. A multicultural society like ours is one where looking at both sides is an absurdity because there is in reality many more sides, and I like it that way. What I mean by an equal right to be wrong is protection of a diverse, plural society where many people believe many things and they fight it out as free from the interference of outside as we can live with. That seems to me both to be right as a value, and right practically because, as many have noted, bureaucrats, judges and legislators all have done a remarkably bad job of it. -KC On Tue, Mar 11, 2014 at 10:21 PM, Steven Jamar stevenja...@gmail.comwrote: Cryptic. Equal right to be wrong is a good start at what? That is not taking equality seriously and horribly undervalues what the civil war meant and that the 14th amendment is just as much a part of the constitution as the 1st and 5th. Sent from Steve's iPhone On Mar 11, 2014, at 10:02 PM, K Chen tzn...@gmail.com wrote: I can get behind liberty. Can you (and others) get behind equality? I try to speak for others only when asked. And my answer is maybe. Liberty is hard to nail down, but equality is even more ephemeral. At the very least, a diverse society where all citizens have an equal right to be wrong seems like a good start. -KC On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar stevenja...@gmail.comwrote: I can get behind liberty. Can you (and others) get behind equality? Often they work together, but sometimes they are in serious conflict. State sanctioned liberty to exclude and discriminate against denies equality to some. State sanctioned and enforced equality limits the liberty of some who want to be free to exclude on liberty grounds. State prohibition of discrimination on the basis of race, gender, age, and religion mean in no small part those people are at liberty to do things and to participate in things they could not without the anti-discrimination laws -- so it increases their liberty (and equality) at the expense of some liberty of others who want to treat some as less equal. It is not an easy calculus nor is consistency possible. But there are values in the constitution beyond liberty and free exercise. Steve -- 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://iipsj.com/SDJ/ I don't know whether the world is full of smart men bluffing or imbeciles who mean it. -- Morrie Brickman On Mar 11, 2014, at 3:18 PM, K Chen tzn...@gmail.com wrote: I indulge in the fantasy that liberty is a founding belief that we all can believe in and come to reasonable compromise but reality continuously disabuses me of the notion. ___ 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
RE: letter opposing Mississippi RFRA / FDA labeling for ella
Posts are coming in faster than I can read them, so I'll just respond to Steve's post about complicity (see below) and then do some other work. I think Steve is conflating two issues. One issue is whether the religious claimant believes the conduct to be wrongful, so that he cannot permissibly engage in it or assist others in engaging in it. This may not depend much or at all on how likely it is that the wrongful conduct will result in harm. I may believe it is wrong to shoot a gun into the air, even if there is only a one in a thousand chance that the falling bullet will injure someone. Some people may believe it is wrong to use ella, even if they are persuaded that there is only a one in a thousand chance that it will cause an abortion. I tried to point out in my earlier response to Sandy (see below) that the ella situation is quite different from knowing that someone will likely die in the building of a skyscraper. In any event, the one in a thousand chance is not best seen as a matter of complicity; it is instead a part of the consideration of whether the action is wrongful (shooting the gun into the air, or using ella). Each person is entitled himself or herself to decide that question, and to take into account the odds of injury to the extent relevant under their moral and religious calculus. My religious views are my own; they determine what is permitted or prohibited as a matter of my religious obligations; no one else gets to decide that for me. The second issue deals with complicity. Now the question is whether I am responsible for the act that I have already determined to be wrongful (shooting the gun into the air, or using ella), even though I'm not the one who actually does it. We've discussed that issue at length. I don't want to rehash the issue of whether it is different if (1) I pay wages to my employees, knowing they may choose to use some of the money to engage in acts I might consider wrongful, such as buying and using ella, or (2) I buy an insurance policy for my employees that, by its terms, covers the cost of their getting the ella. The difference is obvious to me. Many of you will remember Doug making the point eloquently at the AALS meeting. In any event, note that this analysis has nothing to do with whether there is only a one in a thousand chance of some evil resulting from the action; we already dealt with the probabilities, to the extent they are morally relevant, in determining that the action was wrongful. Steve is simply wrong, in my view, to treat the one in a thousand odds as being determinative of moral complicity. Maybe some judge (or law professor) can tell us that we don't understand our own faith's view of complicity. Under Thomas, my own religious views are the ones that matter with regard to whether my connection to a wrongful act is so close that I am morally complicit, and thus that I am violating my religious obligations. Even if we reject Thomas, it is perfectly reasonable for me to consider myself complicit in the use of the ella by an employee, when I provide the insurance policy that covers it. Again, there probably is no point in rehashing all of that. We've all stated our views multiple times. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, March 11, 2014 5:31 PM To: Law Religion Law List Subject: Re: letter opposing Mississippi RFRA / FDA labeling for ella I think it is difficult only because of the impossibly long, subjective, untestable stretch of the religious (not legal) complicity theory. If there is .1% chance of something happening, does that make one complicit in it? Does my paying taxes make me complicit in the 30,000 annual deaths on tax-funded highways? There is no legally congizable end to the complicity theory - leaving the courts to simply adopt whatever the adherent says it is. I hope this theory is soundly and completely rejected. And I generally support accommodations - even for the anti-gay photographer (I would do it not on religious grounds, but on speech grounds and on the grounds of the size of the business - have sympathy for the solo photographer that I do not have for Sears. Steve -- 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://iipsj.com/SDJ/ Lay not up for yourselves treasures upon earth, where moth and rust doth corrupt, and where thieves break through and steal; but lay up for yourselves treasures in heaven, where neither moth nor rust doth corrupt, and where thieves do not break through nor steal. For where your treasure is, there will your heart be also. Matthew 6:19-21 On Mar 11, 2014, at 8:18 PM, Scarberry, Mark
RE: letter opposing Mississippi RFRA
Religious and moral obligations aren't bounded by what the state allows. We are bound to feed the hungry even if the state prohibits it, and some of us are bound not to eat certain foods or to engage in other conduct even if commanded by the state. A view that we aren't religiously or morally responsible because we are just doing what the state commands is a prescription for disaster. I don't think Hillel has that view, but his argument comes dangerously close to entailing it. Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 6:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Thanks Brad. I'm still not sure I understand, though. You have helped me understand why, in the absence of a contraception mandate a religious employer with these beliefs would be obligated to choose not to cover contraception. But the contraception mandate doesn't allow the employer to choose whether contraception is covered. So in what way is the employer fully involved in the decision of what is being covered? On Tue, Mar 11, 2014 at 9:26 PM, Brad Pardee bp51...@windstream.netmailto:bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto: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.
RE: letter opposing Mississippi RFRA
Thanks for your extremely helpful post, Chris. I was going to list some religious liberty cases I've worked on as examples to make the same point, but your list is more current. A lot of religious liberty disputes involve state and local officials and agencies callously burdening the liberty and/or equality interests of religious minorities. Political solutions are dearly bought if they are available at all. I would add one additional point. The argument that the injury caused by discriminatory actions of for profit commercial enterprises is so hurtful and so difficult to mitigate that we cannot accept claims for religious exemptions from civil rights statutes is a powerful one. While I think some limited accommodations might be justified in particular situations, I also believe that the state has a very compelling interest in rejecting accommodations in many such circumstances. However, if we are going to operate under a system that rejects accommodating conscience claims because the individual seeking an exemption is engaged in for profit commerce or is attempting to avoid providing insurance coverage for only three or four possible treatments out of thousands covered by a health plan, then we ought to be clear that we are willing to deny our own freedom of conscience claims or claims by others based on our own deeply held values in similar circumstances. If a pharmacist learns that a drug distributed in the U.S. but manufactured overseas is produced under horribly immoral conditions -- sweat shop labor that is virtually slavery, extremely cruel animal experiments, the use of human subjects to test the drug without adequate safeguards -- would we insist that the pharmacist must stock and distribute this drug if state law requires him to do so because he is in commerce and, accordingly, waives any right to object to legal mandates on conscience grounds. Similarly, we can think of a medical treatment that shocks our conscience; organ transplants purchased from indigent individuals, female genital mutilation, choose your own morally repugnant outrage. Then ask whether there is an issue of conscience worthy of respect if you are required to provide a health plan for employees that includes coverage for such choices. In cases like these, if we have the misfortune to see our society support values that wrench our conscience, should we at least ask whether it is possible to provide the drug in question to people who want to buy it without forcing the pharmacist to violate her conscience? Should we at least ask whether there is some alternative way to provide health coverage to employees that includes these choices without forcing the employer to violate her conscience? Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Christopher Lund [l...@wayne.edu] Sent: Tuesday, March 11, 2014 8:30 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA Say you support Free Exercise regulatory exemptions but you don’t support the claims in Hobby Lobby (or the other for-profit/commercial/complicity claims, like Elane Photography). In deciding what to think of state RFRAs, you might be interested in proportions. Only a tiny fraction of state RFRA cases have involved those kinds of issues. I’d say there have been around a couple hundred state RFRA cases, which sounds like a lot but is only probably around 1 or 2 cases per state per year. Yet I only know of one decided state RFRA case—Elane Photography—about this kind of thing. There may be other cases I don’t know about; there certainly have been controversies apart from litigation; and I expect there will be at least a few more cases in the future. But I still think that the number of Elane Photography cases is going to be small relative to the universe of state RFRA cases. So we should keep in mind some quite sympathetic state RFRA cases, some of quite recent stripe: the Native American student who got the right to wear his hair long in A.A. v. Needville Indep. School Dist., 611 F.3d 248 (5th Cir. 2010), the Santeria folks who got to continue their religious rituals sacrificing animals in Merced v. Kasson, 577 F.3d 578 (5th Cir. 2009), the Jehovah’s Witness who got a bloodless liver transplant that was necessary to keep her alive in Stinemetz v. KHPA, 252 P.3d 141 (Kan. App. 2011). Or while we’re talking Mississippi, consider the leading Mississippi Free Exercise case which happened back in the 1980s. It involved a Jehovah’s Witness who had been shot by her daughter. Her chances in surgery were fair even without a blood transfusion, and she insisted she would rather die than get a blood transfusion and be damned for eternity. But the local DA insisted that she was needed to testify in court to the daughter’s crime and he didn’t want to take any chances, so he physically
Re: letter opposing Mississippi RFRA
If anything, analogizing religious objections to the exercise of conscience undersells the problem. For the (archetypal) Jehova Witness, life is eternal, except for the damned who are annihilated. For the (archetypal) Buddhist life is suffering, and disobedience to religious command means prolonging that suffering in this life and the next and the next and the next. And so on. Whether or not one is sympathetic to the beliefs of religious believers, acknowledging them goes a long way towards predicting their behavior. -K.C. ___ 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.
RFRA-Like Statutes Vs. Narrow Targeted Exemptions
So Hillel Levin asked a good question about why we should prefer RFRA-like statutes over narrow targeted exemptions addressed to particular religions, their particular beliefs, and the particular situations they find themselves in. Why can’t religious groups simply go to the legislature when a particular law burdens them? Why do they need RFRAs? It’s a persistent question, and I’ve heard it voiced by a number of thoughtful folks. Writing the last post and its stuff about Jehovah’s Witnesses, I found myself in an unusual train of thought. Imagine Hillel Levin and I agreed that we should try and offer some protection to Jehovah’s Witnesses in their religious beliefs against blood transfusions. How would we do it? What would we say? Well, we might go with a variant on the following language: “No Jehovah’s Witness shall be in any way legally punished for choosing not to have a blood transfusion. And no Jehovah’s Witness shall be permitted to deny anyone else—including their minor children—a blood transfusion.” Don’t quibble with me. I’m not saying this is perfect or even very good, but I do think it captures our most basic intuitions. Anyway, say a legislature passed this and went home. But then the cases come. A Jehovah’s Witness in the state Medicaid program who will die without a bloodless liver transplant (because she refuses a regular liver transplant which will require a blood transfusion). She can get a bloodless liver transplant done in a neighboring state (for less money than a regular liver transplant), but a state Medicaid rule requires that medical procedures be done in state when possible and administrative officials have interpreted the rule so that it’s either a regular liver transplant (done in-state) for her or nothing. That’s Stinemetz v. KHPA , 252 P.3d 141 (Kan. App. 2011). And I don’t know it gets resolved under our statute. Or a Jehovah’s Witness who’s defending a child-custody proceeding. The father says that the mother shouldn’t have custody because she’s a Jehovah’s Witness, and one day the kids might get sick and need a blood transfusion, and if that happens she might not give it to them because of her religious beliefs. None of that has happened, but it might happen and that’s the father’s argument. That’s one of the issues presented in Harrison v. Tauheed , 256 P.3d 851 (Kan. 2011). And I don’t know it gets resolved under our statute either. Or take the intersection of Jehovah’s Witnesses and tort law’s doctrine of avoidable consequences. I think I agree with cases like Munn v. Algee , which involved a Jehovah’s Witness injured by a motorist and who ended up dying because she refused a blood transfusion. Munn held that the defendant motorist didn’t have to pay for the death, because it was a consequence that the plaintiff could have avoided with a blood transfusion. But there are cases harder than Munn v. Algee , cases I’m unsure about, like Braverman v. Granger , __ N.W.2d __, 2014 WL 92243 (Mich. Ct. App. 2014). Braverman involved a Jehovah’s Witness with an upcoming surgery who had informed her doctor that she would die rather than take a blood transfusion. The doctor knew that when he committed the alleged malpractice in question, malpractice that made a blood transfusion unavoidable. After the Witness died (because she refused the transfusion), her estate sued the doctor, and the question again was the doctrine of avoidable consequences. The plaintiff lost. And maybe that too is right, though the implication is that a doctor could commit any kind of malpractice resulting in the death of a Jehovah’s Witness, and it would never be actionable if a blood transfusion would have prevented it. Regardless, again I have no idea how any of this comes out under our statute. So what’s the point? I think if we’re requiring legislatures to resolve and pass particular exemptions in advance, we’re requiring the impossible. It’s not much different from saying no exemptions at all. The cases that are going to arise have such different postures, unforeseeable postures, almost unimaginable postures; no legislature could draft language suitable for all the possible different contexts. And also note also what this hypothetical assumed in the first place. It imagined that a state legislature would actually take time to consider what approach to adopt with respect to Jehovah’s Witnesses and their religious beliefs about blood transfusions. I can’t imagine that ever happening. Legislatures simply don’t have time for that. And on top of that, Jehovah’s Witnesses are a religious minority to be sure—but they are also a well-known religious group in this country, with a well-known belief against blood transfusions. Lesser-known groups with lesser-known beliefs will have even less of a chance. People sometimes point to the fact that the Native American believers got a statutory exemption after Smith . But those folks had just
