Re: Hobby Lobby transcript
Thanks very much to everyone for the responses. Some follow-ups: 1. Most importantly, in response to Alan, the less-restrictive solution that appeared to have some traction with the Justices was *not* simply that the government could in theory pay for the services (with single-payer or a new tax scheme, for instance). Such a holding would be a radical deviation from decades of decisions -- Lee and Tony Susan Alamo would have come out differently, for instance. And the SG would and should have resisted that idea strenuously, as he has done, in his briefs. The argument, instead, is that once the agency has *already* offered an alternative (here, the Notre Dame solution) to a certain subset of objectors (nonprofits) -- thereby demonstrating that that alternative is viable for at least a certain group -- it has to treat other religious objectors the same, unless there is good reason to treat them differently. This is, in effect, merely *O Centro *all over again (recall that the government had no good reason for treating hoasca differently from peyote). As the SG indicated in his answers to questions about the secondary accommodation, there *might *be such a good reason for disparate treatment here: For instance, extending the accommodation to for-profit corporations *might *be far more costly to the government than if it is limited to nonprofits, depending on how many for-profit objectors are self-insured and use third-party administrators. (In such cases, the government effectively picks up the tab by giving credits to the TPAs.) Because these plaintiffs have not asked for that remedy, there hasn't been any occasion for the government to estimate such costs yet. But if it turns out that most for-profits use issuers (such as Aetna), or if very few for-profits with self-insured plans would invoke the accommodation, then perhaps the government would have no good basis for refusing to extend the secondary accommodation to for-profits. Of course, Greg Lipper is right that the Justices would hardly be inclined to settle upon this solution if it would not resolve the RFRA claims -- if the for-profit cases would simply slide on over into the Notre Dame column, and remain unresolved. But presumably, if they embrace this compromise, they will signal (or even hold) that the Notre Dame-like claims are meritless. (That's another virtue of this solution -- it would take care of all the outstanding cases.) 2. As for the possibility that the Justices will hold that there is no substantial burden because Hobby Lobby can simply drop its health care plan . . . Dan Conkle is right that Paul Clement asked for an opportunity for a trial on that question. I have argued that we needn't even get there, because the plaintiffs have failed to satisfy the requirement of even pleading facts that would, if proved, demonstrate that that option would impose substantial pressure on them to offer contraceptive coverage: http://balkin.blogspot.com/2014/02/hobby-lobby-part-ix-there-is-no.html. Of course, these or other plaintiffs might file new complaints that satisfy Iqbal/Trombly, in which case there would, indeed, need to be trials on the question. I am skeptical that most employers will be able to prove the requisite degree of pressure -- see http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html-- but perhaps some would. The whole point of my posts on this question has been that it's a highly fact-intensive question that should be adjudicated case-by-case. 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder *practice*of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact *exactly* what the Court was doing in cases from *Braunfeld* to *Jimmy Swaggart*, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which the Court was honest about its balancing was Warren's plurality opinion in *Braunfeld*.) This led me to think, once again, that perhaps Chip was right way back in 1993 -- it would have been much better for Congress to have used the language of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to recreate the FEC doctrine of the preceding generation. A lesson for state legislatures and mini-RFRAs going forward? On Tue, Mar 25, 2014 at 11:46 PM, Alan Brownstein aebrownst...@ucdavis.eduwrote: I think Marty's second point below about the Court's somewhat positive reception to the least restrictive means argument is important because it provides a basis for resolving this case in Hobby Lobby's favor that is relatively limited in its application. Clement argues that this is a unique case because it is simply about who should
Re: Hobby Lobby transcript
I think Mary is dead-on on this point and would love to see the court interpret RFRA as inherently and unavoidably including some sort of balancing test that takes into account not just whether the burden is substantial, but just how substantial or intrusive it is, as well as recognizing that the state’s compelling interests are not all equal, and that the state’s interest includes the employee’s liberty and economic and health interests as well as the “state’s” separable interests and that the employee’s interests should be included in the mix in assessing the substantiality of the burden and the compellingness of the state’s interest. Of course this requires RFRA to be applied somewhat differently from the way it is written, but the court has a strong leg to stand on for this sort of intepretation — RFRA itself is the “Restoration” act and specifically states that it was returning the law to what it was before Smith — and so congressional intent can be used to interpret these terms in the very way Marty articulates below. We all know that the court often puts its decisions into a form that does not reflect fully the “real reasons” behind the decision, but rather puts them into the language and structures of our traditional forms of legal reasoning. While that is generally to the good, I do at times wish the court would be more willing to rework its formula of words to reflect what it is doing more forthrightly. Of course this has been true for a long time in EP with its rational basis and less deferential rational basis review where, as suggested by Justice Thurgood Marshall (among others) the court is really engaging in a balancing test looking at not only the interests of the state, and the interests of the person whose liberty is at stake, but also at the interests of third parties, especially in the employment setting. 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/ “It’s not the note you play that’s the wrong note – it’s the note you play afterwards that makes it right or wrong.” Miles Davis On Mar 26, 2014, at 7:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder practice of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact exactly what the Court was doing in cases from Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which the Court was honest about its balancing was Warren's plurality opinion in Braunfeld.) This led me to think, once again, that perhaps Chip was right way back in 1993 -- it would have been much better for Congress to have used the language of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to recreate the FEC doctrine of the preceding generation. A lesson for state legislatures and mini-RFRAs going forward? ___ 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: Hobby Lobby transcript
I don't think Marty is suggesting otherwise, but on the substantial burden issue and the Iqbal/Twombly point, I can't think that there would have to be a new lawsuit. Wouldn't the Supreme Court properly remand to permit the district court to grant leave to amend the complaint under FRCP 15(a)(2)? Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, March 26, 2014 7:44 AM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby transcript Thanks very much to everyone for the responses. Some follow-ups: 1. Most importantly, in response to Alan, the less-restrictive solution that appeared to have some traction with the Justices was not simply that the government could in theory pay for the services (with single-payer or a new tax scheme, for instance). Such a holding would be a radical deviation from decades of decisions -- Lee and Tony Susan Alamo would have come out differently, for instance. And the SG would and should have resisted that idea strenuously, as he has done, in his briefs. The argument, instead, is that once the agency has already offered an alternative (here, the Notre Dame solution) to a certain subset of objectors (nonprofits) -- thereby demonstrating that that alternative is viable for at least a certain group -- it has to treat other religious objectors the same, unless there is good reason to treat them differently. This is, in effect, merely O Centro all over again (recall that the government had no good reason for treating hoasca differently from peyote). As the SG indicated in his answers to questions about the secondary accommodation, there might be such a good reason for disparate treatment here: For instance, extending the accommodation to for-profit corporations might be far more costly to the government than if it is limited to nonprofits, depending on how many for-profit objectors are self-insured and use third-party administrators. (In such cases, the government effectively picks up the tab by giving credits to the TPAs.) Because these plaintiffs have not asked for that remedy, there hasn't been any occasion for the government to estimate such costs yet. But if it turns out that most for-profits use issuers (such as Aetna), or if very few for-profits with self-insured plans would invoke the accommodation, then perhaps the government would have no good basis for refusing to extend the secondary accommodation to for-profits. Of course, Greg Lipper is right that the Justices would hardly be inclined to settle upon this solution if it would not resolve the RFRA claims -- if the for-profit cases would simply slide on over into the Notre Dame column, and remain unresolved. But presumably, if they embrace this compromise, they will signal (or even hold) that the Notre Dame-like claims are meritless. (That's another virtue of this solution -- it would take care of all the outstanding cases.) 2. As for the possibility that the Justices will hold that there is no substantial burden because Hobby Lobby can simply drop its health care plan . . . Dan Conkle is right that Paul Clement asked for an opportunity for a trial on that question. I have argued that we needn't even get there, because the plaintiffs have failed to satisfy the requirement of even pleading facts that would, if proved, demonstrate that that option would impose substantial pressure on them to offer contraceptive coverage: http://balkin.blogspot.com/2014/02/hobby-lobby-part-ix-there-is-no.html. Of course, these or other plaintiffs might file new complaints that satisfy Iqbal/Trombly, in which case there would, indeed, need to be trials on the question. I am skeptical that most employers will be able to prove the requisite degree of pressure -- see http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html -- but perhaps some would. The whole point of my posts on this question has been that it's a highly fact-intensive question that should be adjudicated case-by-case. 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder practice of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact exactly what the Court was doing in cases from Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which
RE: Hobby Lobby transcript
Consistent with Steve's post, the Court in City of Boerne v. Flores at least hinted that RFRA could be interpreted to require intermediate rather than full-fledged strict scrutiny: Even assuming RFRA would be interpreted in effect to mandate some lesser test, say one equivalent to intermediate scrutiny, the statute nevertheless would require searching judicial scrutiny of state law with the attendant likelihood of invalidation. 521 U.S. at 534. More recent precedents, of course, not to mention RFRA's explicit language, might make it difficult for the Court to move in this direction. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Wednesday, March 26, 2014 8:49 AM To: Law Religion Law List Subject: Re: Hobby Lobby transcript I think Mary is dead-on on this point and would love to see the court interpret RFRA as inherently and unavoidably including some sort of balancing test that takes into account not just whether the burden is substantial, but just how substantial or intrusive it is, as well as recognizing that the state's compelling interests are not all equal, and that the state's interest includes the employee's liberty and economic and health interests as well as the state's separable interests and that the employee's interests should be included in the mix in assessing the substantiality of the burden and the compellingness of the state's interest. Of course this requires RFRA to be applied somewhat differently from the way it is written, but the court has a strong leg to stand on for this sort of intepretation - RFRA itself is the Restoration act and specifically states that it was returning the law to what it was before Smith - and so congressional intent can be used to interpret these terms in the very way Marty articulates below. We all know that the court often puts its decisions into a form that does not reflect fully the real reasons behind the decision, but rather puts them into the language and structures of our traditional forms of legal reasoning. While that is generally to the good, I do at times wish the court would be more willing to rework its formula of words to reflect what it is doing more forthrightly. Of course this has been true for a long time in EP with its rational basis and less deferential rational basis review where, as suggested by Justice Thurgood Marshall (among others) the court is really engaging in a balancing test looking at not only the interests of the state, and the interests of the person whose liberty is at stake, but also at the interests of third parties, especially in the employment setting. 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/ It's not the note you play that's the wrong note - it's the note you play afterwards that makes it right or wrong. Miles Davis On Mar 26, 2014, at 7:44 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: 3. I forgot to mention in my original post one other thing that struck me during the argument: Justice Kagan described the Sherbert/Yoder practice of the Court as being a form of balancing, involving not only the nature and degree of burden on the plaintiff and the government's interest, but also the impact on third parties. Of course, as most of you know, she's absolutely right -- this is in fact exactly what the Court was doing in cases from Braunfeld to Jimmy Swaggart, even while it was (disingenuously) mouthing the language of strict scrutiny. (The only case I'm aware of in which the Court was honest about its balancing was Warren's plurality opinion in Braunfeld.) This led me to think, once again, that perhaps Chip was right way back in 1993 -- it would have been much better for Congress to have used the language of balancing, or some form of intermediate scrutiny, in RFRA, if its aim was to recreate the FEC doctrine of the preceding generation. A lesson for state legislatures and mini-RFRAs going forward? ___ 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)
RE: The importance of the assignment power
What if, in 1990, Chief Justice Rehnquist had assigned the opinion in Smith to O'Connor instead of Scalia? The result in the instant case, of course, would have been the same, but instead of junking the Free Exercise Clause, as Scalia basically did, the argument would have been that Oregon had met its compelling interest burden. So the doctrine of Sherbert etc. (whatever one thinks it actually was) stays in place-many of us would have castigated O'Connor for believing that Oregon had in fact demonstrated a compelling interest, but that would have gone to the application, not necessarily to the doctrine itself-and, I assume there would have been no RFRA. I wonder if we wouldn't have been better off, as a society, with that outcome, since RFRA is entirely a response to Scalia's specific opinion (which, I concede, did garner five votes). So one question is why did Rehnquist give the opinion to Scalia? Is it simply that he was due for an assignment? One can ask the same question, of course, about Roberts and Heller. I have no problem with the outcome in Heller, but I think that Scalia's opinion is scandalously awful in the way he handles historical materials and leaves open many questions (beginning, of course, with the standard of review and why it is constitutional to deprive Martha Stewart of the fundamental right to defend herself merely because she lied to an FBI agent). ___ 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.
