RE: On a different strand of the seamless web
I’m not a fan of official prayers. But it seems a plausible view of religious liberty that (1) people should have exemptions, when possible, that let them practice their religion, but (2) government institutions should have considerable latitude to include religious speech in their programs – so long as they don’t force people to pray – especially given longstanding American traditions approving of some such inclusion. (In particular, being in the audience while a chaplain is praying strikes me as not that much to “endure,” and I say this as someone who is irreligious; while being required to participate would be wrong, I think, being required to simply be present in the room, or to briefly leave the room for the occasion, seems to me as quite a different matter.) The view I describe here may not be everyone’s view of religious liberty, but it seems to me quite coherent, and has something to recommend it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, July 06, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I very much appreciate Doug's post and his reference to Town of Greece. The Becket Fund, which has very ably represented Hobby Lobby and others in the contraceptive cases, insists that it is committed to religious liberty. (Likewise many on this list.) But in Town of Greece, the Becket Fund filed an amicus brief on the side of the Town; it was aligned not with religious liberty, but rather with the power of government to shove prayer in the face of citizens who wanted to interact with elected officials without having to endure a worship exercise for someone else's faith. If this is our constitutional tradition, as many argued, it is not a tradition of religious liberty. On Sun, Jul 6, 2014 at 1:01 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. 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.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. -- 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: Hobby Lobby Question
I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edu wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.com [13] wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com [10] wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com [7] wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 [1] Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org [2] Howard University School of Law fax: 202-806-8567 [3] http://sdjlaw.org [4] For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edu [5] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [6] 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 [8] To subscribe, unsubscribe, change options, or get password, see
RE: On a different strand of the seamless web
I take it that the authors of those briefs saw a law requiring someone to do something that they thought was sinful as different from a practice under which people end up hearing things from the government that they might find offensive or alienating. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, July 06, 2014 11:10 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I think Chips and Doug's key points in their posts are worth emphasizing. Many briefs supporting the town of Greece and the Court's opinion in that case treated the religious liberty arguments of plaintiffs with complete distain. The authors of many of those briefs and the same justices who wrote the opinion upholding coercive and discriminatory prayer practices in Town of Greece insisted that the religious liberty of Hobby Lobby must be protected. As Chip suggests, a tradition, or support for a legal regime, of religious liberty for me but not for you cannot be fairly described as a commitment to religious liberty. An incidental, but not insignificant, result of this kind one-sided support for religious liberty is the burden it places on those of us who try to defend and promote religious liberty and equality for people on both sides of the culture wars. Alan ___ 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: On a different strand of the seamless web
When people are asking government officials to exercise their discretion in a way that seriously impacts their important interests in a courtroom, at an administrative proceeding, in a government bureaucrat's office, in a classroom , or at the town hall meeting in a small town, I think it is intrinsically coercive for the officials or the chaplain they designate to ask the petitioners to stand, bow their heads and join them in collective prayer. Indeed, I cannot imagine anyone not feeling pressured and coerced in that situation -- just as I believe there is a significant likelihood that a member of the small audience remaining seated while everyone else stands or leaving the room as the prayer begins will have an adverse influence of the officials who are being asked to exercise their discretion. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, July 06, 2014 11:07 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I’m not a fan of official prayers. But it seems a plausible view of religious liberty that (1) people should have exemptions, when possible, that let them practice their religion, but (2) government institutions should have considerable latitude to include religious speech in their programs – so long as they don’t force people to pray – especially given longstanding American traditions approving of some such inclusion. (In particular, being in the audience while a chaplain is praying strikes me as not that much to “endure,” and I say this as someone who is irreligious; while being required to participate would be wrong, I think, being required to simply be present in the room, or to briefly leave the room for the occasion, seems to me as quite a different matter.) The view I describe here may not be everyone’s view of religious liberty, but it seems to me quite coherent, and has something to recommend it. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, July 06, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I very much appreciate Doug's post and his reference to Town of Greece. The Becket Fund, which has very ably represented Hobby Lobby and others in the contraceptive cases, insists that it is committed to religious liberty. (Likewise many on this list.) But in Town of Greece, the Becket Fund filed an amicus brief on the side of the Town; it was aligned not with religious liberty, but rather with the power of government to shove prayer in the face of citizens who wanted to interact with elected officials without having to endure a worship exercise for someone else's faith. If this is our constitutional tradition, as many argued, it is not a tradition of religious liberty. On Sun, Jul 6, 2014 at 1:01 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. 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.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. -- 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
Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?
My thoughts on the longer-term ramifications of the decision. The upshot is that I think it's very important in two respects: (i) the strong affirmation of the holding in *Thomas *that civil authorities cannot evaluate religious claims that X is a forbidden form of complicity with evil; and, most importantly, as Micah, Rich and Nelson also stress in their Slate piece, (ii) the shocking abandonment of pre-Smith doctrine as a guide to applying RFRA. http://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html As I say in the post, Chip was right 20 years ago: Even if one favors a statutory regime of religious accommodation, and thus supported RFRA -- as I do and I did -- it turns out to have been a huge mistake for Congress to use the words of strict scrutiny, when virtually no one supporting the legislation actually favored such scrutiny. In an age of Scalian textualism, that was a disaster waiting to happen . . . and now, perhaps, it has. I'm curious: Does anyone on the list (i) think the Court was right to say (or at least come very close to holding) that pre-Smith doctrine is inapposite to RFRA; and/or (ii) still think it was a good idea for Congress to use least-restrictive-means language in RFRA? ___ 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: On a different strand of the seamless web
unlike Doug, I do not believe corporations are people, that they have religious believes or that they have souls (that is of course an understatement); corporations are legal vehicles designed to make money for the investors and to shield the investors from having to use their own assets to cover losses and debts. I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to heaven or hell, or that it prays. So, I guess I am unpersuaded that there can be an exemption issue for a corporation From: Douglas Laycock dlayc...@virginia.edu To: Paul Finkelman paul.finkel...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Scarberry, Mark mark.scarbe...@pepperdine.edu Sent: Sunday, July 6, 2014 11:36 AM Subject: Re: On a different strand of the seamless web Unlike Paul, I think the exemption issues and the government-sponsored prayer issues are very different. On Sun, 6 Jul 2014 01:36:45 -0700 Paul Finkelman paul.finkel...@yahoo.com wrote: Doug's point here seems to encapsulate what is the problem for so many of us. Those in the majority would make the rest of us burn incense, or listen to their prayers, or pay for their prayers or pray with them, or obey their views on sex and marriage and children, and we can go on and on. And many in the majority forget that they were once persecuted, whether it was Christians killed in Rome or Baptists whipped in Virginia, and now that they have the power, they would impose it on us, whether it is health care if you are unfortunate enough to have to work for Hobby Lobby or prayers if you are unfortunate enough to need something form the government of the Town of Greece. Paul Finkelman (writing from Granada, where the evidence and reminders of religious intolerance and persecution is everywhere) From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Scarberry, Mark mark.scarbe...@pepperdine.edu Sent: Sunday, July 6, 2014 1:01 AM Subject: On a different strand of the seamless web On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. 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. 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: On a different strand of the seamless web
Eugene has obviously never been to a city council meeting or town board to ask for something. Those in the audience in Town of Greece who do not pray are setting themselves up to lose before the board; those who are religious outsiders (by dress for example) are being told, from the opening of the meeting that they count less. The Town said it invited clergy from all churches in the town. But that is a subterfuge since many people in the town (a suburb of Rochester) will attend a temple, mosque, synagogue, etc. that is not in the town. So the town is essentially confirming their outsider status even before they come before the council/town board. Eugene, your view is utterly incoherent if you connect it to the reality of small town politics and how government at that level works. Paul Finkelman From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, July 6, 2014 2:07 PM Subject: RE: On a different strand of the seamless web I’m not a fan of official prayers. But it seems a plausible view of religious liberty that (1) people should have exemptions, when possible, that let them practice their religion, but (2) government institutions should have considerable latitude to include religious speech in their programs – so long as they don’t force people to pray – especially given longstanding American traditions approving of some such inclusion. (In particular, being in the audience while a chaplain is praying strikes me as not that much to “endure,” and I say this as someone who is irreligious; while being required to participate would be wrong, I think, being required to simply be present in the room, or to briefly leave the room for the occasion, seems to me as quite a different matter.) The view I describe here may not be everyone’s view of religious liberty, but it seems to me quite coherent, and has something to recommend it. Eugene From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, July 06, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I very much appreciate Doug's post and his reference to Town of Greece. The Becket Fund, which has very ably represented Hobby Lobby and others in the contraceptive cases, insists that it is committed to religious liberty. (Likewise many on this list.) But in Town of Greece, the Becket Fund filed an amicus brief on the side of the Town; it was aligned not with religious liberty, but rather with the power of government to shove prayer in the face of citizens who wanted to interact with elected officials without having to endure a worship exercise for someone else's faith. If this is our constitutional tradition, as many argued, it is not a tradition of religious liberty. On Sun, Jul 6, 2014 at 1:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. 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. -- 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
RE: Extent of Wheaton College's Objection
Yes, Wheaton’s application referred to the legal effects of the Form 700. But the legal effects correspond to what reasonably would be expected from its language, the required deliveries and the underlying regulations. (One could imagine a similar notice structure being agreed to in a multiparty commercial transaction in which one party give notices which trigger contingent obligations of another party owed to yet another.) Suppose the problematic form language and third-party deliveries are dispensed with, and the government, for whatever reasons, decides to support continuation of the desired coverage by deeming the college’s notice to the government of its religious objection as having the same effect as a Form 700 sent to the originally required recipients (also requiring the government itself to step in and send notices). It seems to me the college would then have significantly less reason to object through legal means. Granted, Wheaton will presumably not be pleased that the funding of what it considers objectionable will continue. But it seems to me the college could reasonably take the view that it is responsible for its own actions and the consequences that may ordinarily be expected to flow from them. A governmental “deeming” (and other action the government would need to take) would result in the same funding outcome but only because the deeming changes the ordinarily expected consequences of Wheaton’s more limited action. The result of the changes would be to displace the college from its former position in the causal chain except for the initial act of registering its religious objection with the government. The government will still do what it will do, but without the direct involvement of the college. I do not know what Wheaton will do. But it seems to me if they were to be satisfied with a final outcome as seems to be suggested in the Court’s injunction order, this would not evidence flawed moral reasoning or inconsistency (or for that matter, “increasingly implausible theories of complicity” if this is included in what people are referring to in the other thread). -Mike Watson From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Saturday, July 05, 2014 1:44 PM To: Law Religion issues for Law Academics Subject: Re: Extent of Wheaton College's Objection As I said, we shall see what Wheaton's reaction would be if and when the government were to treat the new notification as having the same legal effect as Form 700. You'll note that their papers describe their legal complicity as being very closely tied to the legal effects of Form 700. Becket attorneys on this list could, of course, tell us right now what that reaction would be . . . but if I were them, I'd wait to see what the government does first, and what its legal theory is for whatever it does. ;-) ___ 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: Narrow Holding but Potentially Momentous Nonetheless?
Marty, on your two questions: 1. I don't think the Court said that pre-Smith doctrine is inapposite to RFRA. Indeed, it looked at a lot of pre-Smith free exercise law; and on the particular question whether a for-profit corporation has ability to assert free exercise claims at the threshold, it found indications in the Crown Heights Kosher Supermarket case (1961) that they do. Slip op. at 26-27 (referring to the fact that not one justice in that case adopted the state's argument that a for-profit corporation has no standing to assert a free exercise claim). The Court here simply said, correctly, that [e]ven if RFRA was meant to restore the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. The Court's approach seems to me justified for at least three reasons. (a) There was no pre-Smith decision, certainly not in the SCOTUS, rejecting for-profit corporations' standing either; it was an open question, on which both sides used statutory-purpose arguments as well as case law. (b) The legislative history makes clear that the statute does not codif[y] the result reached in any prior free exercise decision, only the legal standard that was applied in those decisions. Whatever the line is between principles and results, the two don't collapse, and it's the former that govern. (c) Finally, as several of us have argued since the statute passed, the stated textual purpose is to restore the compelling interest test as set forth in Sherbert and Yoder, not as in every pre-Smith decision, especially those in lower courts--so if a line of reasoning from such a pre-Smith decision is inconsistent with the logic of Sherbert and Yoder, it is probably not warranted under the statute. I take Sherbert and Yoder to have given serious but not automatic protection. That formulation is quite general, I admit, but I think it points toward something more than just whatever courts said in any exemption case pre-Smith. 2. On least restrictive means, I was quoted by Justice Ginsburg in Hobby Lobby (dissent at 12), along with Doug Laycock, for the proposition that the concept appeared in pre-Smith law. (If those are gotcha quotes, I take them as a compliment: As long as you spell my name right...). On this point, I believe (still) that the dissent is correct and that the majority was wrong both here and in Boerne. Sherbert clearly referred to no alternative means of regulation, Yoder to interests ... not otherwise served. I just don't think that the pre-Smith applications in any way foreclosed what the Court did here, which was to apply the least restrictive means phrase pretty carefully--and ultimately cautiously--in the commercial context. The non-profit accommodation seemed to be readily available as an alternative means, and Kennedy particularly emphasized it. It will end up as the alternative means in some modified form/procedure, I think, after the non-profit challenges play out, for some of the reasons you and Tom Goldstein have been discussing. I don't think it is necessary to have a highly severe least restrictive means standard to justify the result in Hobby Lobby. I think that least restrictive means will apply with different degrees of severity in different contexts. That's basically what it's done in the 20 years of RFRA; and in end Hobby Lobby (factoring in Kennedy's opinion) read it fairly cautiously in the commercial context. Yes, that's a good idea. Many people who are unhappy that least restrictive means put any constraint on the government here will be happy in the upcoming case when it constrains the Arkansas prison that refuses to let a Muslim prisoner grow a half-inch beard. Prisons can always claim a compelling interest in safety; often the least-restrictive-means test is the crucial part forcing them to show some connection between safety (or other interests like cost) and the restriction they're imposing. Tom - 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 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, July 06, 2014 3:36 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless? My thoughts on the longer-term ramifications of the decision. The upshot is that I think it's very important in two
RE: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?
A few quick thoughts on Marty's second question. At least some of us saw value in religious liberty legislation employing an intermediate level scrutiny standard of review rather than strict scrutiny years ago. I worked with a group trying to get a state religious land use bill adopted in California prior to RLUIPA being enacted by Congress and our bill called for intermediate level scrutiny. I thought the shift to intermediate level scrutiny in a land use bill was a good idea for both political and policy reasons. There are very few land use regulations that can survive either prong of strict scrutiny if it is rigorously applied. But there might be other circumstances outside of the land use context in which I would support more rigorous review. I thought RLUIPA involved very strange bedfellows because a rigorous review of the means employed by prisons seemed more appropriate in these cases since the compelling state interest was typically a foregone conclusion in prison cases. It may be that religious liberty legislation should be generic to some extent -- but not as broad as RFRA or even RLUIPA. In any case, the opponents of our land use bill fought it just as aggressively as they would have fought a strict scrutiny bill -- and succeeded in killing the bill. Some interest groups and legislators seemed to be genuinely concerned about the lack of guidance an intermediate level scrutiny standard provided. And some legislators seemed genuinely befuddled by the move to intermediate level scrutiny (or were putting on a good act to conceal the fact that they opposed the bill for other reasons that they preferred not to disclose.) I still remember a member of the state judiciary committee (someone who I thought was a generally thoughtful legislator) trying to explain to me why he had no problem with religious liberty statutes that applied a minimal reasonableness standard of review and he had supported a state RFRA bill the year before that required strict scrutiny review -- but there was something about intermediate level scrutiny that seemed so problematic to him that he could not support the bill. So Marty is probably right that more thought should have been given to the standard of review to be applied. But determining what would be an appropriate standard of review is not an easy question to answer. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, July 06, 2014 1:36 PM To: Law Religion issues for Law Academics Subject: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless? My thoughts on the longer-term ramifications of the decision. The upshot is that I think it's very important in two respects: (i) the strong affirmation of the holding in Thomas that civil authorities cannot evaluate religious claims that X is a forbidden form of complicity with evil; and, most importantly, as Micah, Rich and Nelson also stress in their Slate piece, (ii) the shocking abandonment of pre-Smith doctrine as a guide to applying RFRA. http://balkin.blogspot.com/2014/07/hobby-lobby-part-xviii-one-potentially.html As I say in the post, Chip was right 20 years ago: Even if one favors a statutory regime of religious accommodation, and thus supported RFRA -- as I do and I did -- it turns out to have been a huge mistake for Congress to use the words of strict scrutiny, when virtually no one supporting the legislation actually favored such scrutiny. In an age of Scalian textualism, that was a disaster waiting to happen . . . and now, perhaps, it has. I'm curious: Does anyone on the list (i) think the Court was right to say (or at least come very close to holding) that pre-Smith doctrine is inapposite to RFRA; and/or (ii) still think it was a good idea for Congress to use least-restrictive-means language in RFRA? ___ 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: Narrow Holding but Potentially Momentous Nonetheless?
Thanks, Tom. Yes, as Chip's article helpfully elaborates, back in the early 1990s there was a tension between those who wished to frame the statute as a restoration of the doctrine as it stood on April 16, 1990, and those who wished to restore simply Sherbert and Yoder, and to jettison the entire rest of the Court's jurisprudence, including Lee, Hernandez, Jimmy Swaggart, Tony Susan Alamo, etc. Quite frankly, based on my recollection, I think that there was a great deal of reliance among legislators -- especially by abortion opponents -- on the former view: They were repeatedly assured that the point of the statute was to restore the state of affairs as of 04/90, except that the enclaves (military and prisons) would no longer get special treatment. And, more to the point, I've never run across anyone, in the executive branch or the private sector, who has not simply assumed for the past two decades that RFRA incorporates the whole corpus of pre-Smith Supreme Court jurisprudence. Therefore the signals from the HL Court to the contrary are, to my mind, a radical shift, and not at all reflective of congressional intent. As my post explains, I agree with you that the pre-Smith applications did not foreclose what the Court *did* here, which was (in your words) to apply the least restrictive means test pretty carefully--and ultimately cautiously--in the commercial context, and to grant the exemption only because there would be no significant third-party harms. But what it did and what it said are two different things. It could have distinguished Lee (as I do) by saying that this is the rare case in which an exemption for an employer will not harm others. But instead, both at oral argument and in the opinion, the Justices said: Who cares about Lee? It was a free exercise case and did not apply a LRM test. You are also correct that Alito does *selectively* invoke pre-Smith precedents. That's my point: The precedents that are strongly pro-exemption (not only Thomas but even Gallagher, hardly part of the canon!) still have generative force for him . . . but not the long series of cases in which claims to exemptions in the commercial sphere got almost no votes, for decades. On Sun, Jul 6, 2014 at 6:27 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: Marty, on your two questions: 1. I don't think the Court said that pre-Smith doctrine is inapposite to RFRA. Indeed, it looked at a lot of pre-Smith free exercise law; and on the particular question whether a for-profit corporation has ability to assert free exercise claims at the threshold, it found indications in the Crown Heights Kosher Supermarket case (1961) that they do. Slip op. at 26-27 (referring to the fact that not one justice in that case adopted the state's argument that a for-profit corporation has no standing to assert a free exercise claim). The Court here simply said, correctly, that [e]ven if RFRA was meant to restore the status quo ante, there is no reason to believe, as HHS and the dissent seem to suggest, that the law was meant to be limited to situations that fall squarely within the holdings of pre-Smith cases. The Court's approach seems to me justified for at least three reasons. (a) There was no pre-Smith decision, certainly not in the SCOTUS, rejecting for-profit corporations' standing either; it was an open question, on which both sides used statutory-purpose arguments as well as case law. (b) The legislative history makes clear that the statute does not codif[y] the result reached in any prior free exercise decision, only the legal standard that was applied in those decisions. Whatever the line is between principles and results, the two don't collapse, and it's the former that govern. (c) Finally, as several of us have argued since the statute passed, the stated textual purpose is to restore the compelling interest test as set forth in Sherbert and Yoder, not as in every pre-Smith decision, especially those in lower courts--so if a line of reasoning from such a pre-Smith decision is inconsistent with the logic of Sherbert and Yoder, it is probably not warranted under the statute. I take Sherbert and Yoder to have given serious but not automatic protection. That formulation is quite general, I admit, but I think it points toward something more than just whatever courts said in any exemption case pre-Smith. 2. On least restrictive means, I was quoted by Justice Ginsburg in Hobby Lobby (dissent at 12), along with Doug Laycock, for the proposition that the concept appeared in pre-Smith law. (If those are gotcha quotes, I take them as a compliment: As long as you spell my name right...). On this point, I believe (still) that the dissent is correct and that the majority was wrong both here and in Boerne. Sherbert clearly referred to no alternative means of regulation, Yoder to interests ... not otherwise served. I just don't think that the pre-Smith applications in any way
RE: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless?
(I and others on the list can read your Balk. post too, but for now...) If the proposition is that every statement in that paragraph in US v. Lee is determinative for RFRA, then Lee also foreclosed the Court from turning to the insurer-pays accommodation even assuming it imposed no costs on employees. In that same paragraph, Lee said that for commercial actors the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. That would mean, as the government argued, no accommodation period, even if it was easy and had no effect on employees. To conclude that Lee didn't foreclose the Court from looking to the nonprofit accommodation, you have to say that that sentence by itself is dictum--potentially tempered, as in many cases, by other statements in this and other cases if that's justified on other interpretive grounds. So you, and I, like the justices, are engaged in the project of interpreting U.S. v. Lee and selecting what part that must be carried over into RFRA to be most consistent with the statute. It's not a matter of one side or the other ignoring it, or being selective in some unacceptable way. Alito does apply Lee and reads the key holding, most consistent with RFRA, as collecting taxes is the least restrictive means. And the other for-profit cases pre-Smith were mostly discrimination cases, which--however they should be resolved--present different questions than the case where there's an alternative mechanism at hand for providing the benefits. On whether the expectation was that there would be no claims by for-profit businesses that might have any effect on anyone else, I think Doug's brief for the Christian Legal Society shows, based on the deleted earlier language and the public meaning as revealed in the RLPA debate, that members on both sides, when they considered it, thought the statute meant for-profits could still make a claim and have it judged, even if they might lose in most cases. (I have to know what harm means to evaluate whether that's beyond RFRA's protection. If harm is not qualified somehow, it can cover anything. If a law required certain businesses to stay open 7 days a week, an objection by a Sabbath observer could be characterized as a harm to customers even if the vast majority of businesses were willing to stay open. You and I agree at least that for-profit objectors will lose most cases; the question is whether they must lose all of them.) - 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 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, July 06, 2014 5:55 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby: Narrow Holding but Potentially Momentous Nonetheless? Thanks, Tom. Yes, as Chip's article helpfully elaborates, back in the early 1990s there was a tension between those who wished to frame the statute as a restoration of the doctrine as it stood on April 16, 1990, and those who wished to restore simply Sherbert and Yoder, and to jettison the entire rest of the Court's jurisprudence, including Lee, Hernandez, Jimmy Swaggart, Tony Susan Alamo, etc. Quite frankly, based on my recollection, I think that there was a great deal of reliance among legislators -- especially by abortion opponents -- on the former view: They were repeatedly assured that the point of the statute was to restore the state of affairs as of 04/90, except that the enclaves (military and prisons) would no longer get special treatment. And, more to the point, I've never run across anyone, in the executive branch or the private sector, who has not simply assumed for the past two decades that RFRA incorporates the whole corpus of pre-Smith Supreme Court jurisprudence. Therefore the signals from the HL Court to the contrary are, to my mind, a radical shift, and not at all reflective of congressional intent. As my post explains, I agree with you that the pre-Smith applications did not foreclose what the Court did here, which was (in your words) to apply the least restrictive means test pretty carefully--and ultimately cautiously--in the commercial context, and to grant the exemption only because there would be no significant third-party harms. But what it did and what it said are two different things. It could have distinguished Lee (as I do) by saying that this is the rare
RE: On a different strand of the seamless web
It seems to me that Justice Alito rather nicely avoided having to deal with the question of how much a corporation is like a real person (including whether it has a soul, etc.), and also avoided dealing with the well-developed piercing the corporate veil doctrine by adopting a view of corporations long held by law-and-economics scholars. In this view, a corporation is not primarily an artificial entity or person. Instead it is merely a nexis of a large number of implicit and explicit contracts among investors, managers, employees, suppliers and customers that define their relative rights. Alito says at pg. 18: A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. [P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies. Indeed many small businesses involved in other cases challenging the contraceptive mandate are organized as Limited Liability Companies instead of closely held corporations. LLC's are more clearly creatures of contract. It will be interesting to see whether this nexis of contracts approach will be used in other corporate cases having nothing to do with RFRA. Howard Friedman From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, July 06, 2014 7:11 PM To: Paul Finkelman; Law Religion issues for Law Academics; Douglas Laycock; Scarberry, Mark Subject: RE: On a different strand of the seamless web Paul: Are you seriously claiming that Doug believes a corporation has a soul? Or even that he believes it is a person (the singular of “people”) in the lay sense of the word “person,” as opposed to the Dictionary Act sense of the person? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Sunday, July 06, 2014 1:48 PM To: Douglas Laycock; Law Religion issues for Law Academics; Scarberry, Mark Subject: Re: On a different strand of the seamless web unlike Doug, I do not believe corporations are people, that they have religious believes or that they have souls (that is of course an understatement); corporations are legal vehicles designed to make money for the investors and to shield the investors from having to use their own assets to cover losses and debts. I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to heaven or hell, or that it prays. So, I guess I am unpersuaded that there can be an exemption issue for a corporation From: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu To: Paul Finkelman paul.finkel...@yahoo.commailto:paul.finkel...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu; Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu Sent: Sunday, July 6, 2014 11:36 AM Subject: Re: On a different strand of the seamless web Unlike Paul, I think the exemption issues and the government-sponsored prayer issues are very different. ___ 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 Question
Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of the Seven Years War, but (we now know) the trigger for the American Revolution. Or is the better analogy to slavery, where compromise was ultimately impossible (for better or worse)? Sandy Sent from my iPhone On Jul 6, 2014, at 4:14 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: And then we would have massive resistance that would make our largely voluntary tax system unworkable and create civil division at extreme levels. Think, as mentioned at AALS, peasants with pitchforks. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Levinson, Sanford V Date:07/06/2014 11:13 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com [13] wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com [10] wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com [7] wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended
RE: On a different strand of the seamless web
Hobby Lobby itself as a corporation may not have religious beliefs or an immortal soul, but the decisions made for the corporation are made by people who do, as is true for all corporations, large and small. If a corporation had, for instance, engaged int trade with South Africa during apartheid, people wouldn't have simply condemned the corporation. They would have condemned the people who made the decision for the corporation to trade with South Africa. Similarly, it is people with religious beliefs who make the decisions for Hobby Lobby. It is people who establish the values that the corporation operates under and it is people who make the decisions as to what activities the corporation will engage in. There are people who have deeply held religious beliefs that govern the way they live in every aspect of their lives, and to require them to act amorally, solely in pursuit of money, in the office is to say that the law which is supposed to guarantee religious liberty also mandates abject hypocrisy. Either that, or corporations should have on the board room door, Abandon faith, all ye who enter here. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Finkelman Sent: Sunday, July 06, 2014 3:48 PM To: Douglas Laycock; Law Religion issues for Law Academics; Scarberry, Mark Subject: Re: On a different strand of the seamless web unlike Doug, I do not believe corporations are people, that they have religious believes or that they have souls (that is of course an understatement); corporations are legal vehicles designed to make money for the investors and to shield the investors from having to use their own assets to cover losses and debts. I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to heaven or hell, or that it prays. So, I guess I am unpersuaded that there can be an exemption issue for a corporation ___ 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: On a different strand of the seamless web
The boat for equitable treatment in chaplaincy practices sailed in 2005. Simpson v. Chesterfield County Bd. of Supervisors (4th Cir.) explicitly taught that a local government may favor Judeo-Christian practices and prayers over others, but also implicitly taught that other practices may be refused even if offered and otherwise consistent with the rules simply because they are disliked. Cyndi Simpson was told she could not participate as a chaplain because she was Wiccan, and for no other reason. (One wonders whether cert would be denied now as it was back then.) I would mildly disagree, however, with characterizing chaplaincy practices uniformly as shov[ing] prayer in the face of citizens. That is surely characteristic of one type of practice--where the prayergiver is outward facing and preaches more at the gallery than the legislators--but it is not characteristic of the quieter, more inward-facing practices found in the houses of Congress. Town of Greece's fatal flaw is that it blessed the historical practice encompassed by Marsh without realizing that said historical practice was pretty much only the latter type, not the former. The liberty for me but not for thee scent has been in the air for a while and should come as no surprise. The question in my mind is whether the Court will be willing to incorporate elements of religious ethics from other traditions into their decisions as they did with Hobby Lobby and the doctrine of cooperation with evil. My wager is no, but I will allow myself to be surprised. Jeremy On Jul 6, 2014, at 1:10 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I think Chips and Doug's key points in their posts are worth emphasizing. Many briefs supporting the town of Greece and the Court's opinion in that case treated the religious liberty arguments of plaintiffs with complete distain. The authors of many of those briefs and the same justices who wrote the opinion upholding coercive and discriminatory prayer practices in Town of Greece insisted that the religious liberty of Hobby Lobby must be protected. As Chip suggests, a tradition, or support for a legal regime, of religious liberty for me but not for you cannot be fairly described as a commitment to religious liberty. An incidental, but not insignificant, result of this kind one-sided support for religious liberty is the burden it places on those of us who try to defend and promote religious liberty and equality for people on both sides of the culture wars. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Sunday, July 06, 2014 9:51 AM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I very much appreciate Doug's post and his reference to Town of Greece. The Becket Fund, which has very ably represented Hobby Lobby and others in the contraceptive cases, insists that it is committed to religious liberty. (Likewise many on this list.) But in Town of Greece, the Becket Fund filed an amicus brief on the side of the Town; it was aligned not with religious liberty, but rather with the power of government to shove prayer in the face of citizens who wanted to interact with elected officials without having to endure a worship exercise for someone else's faith. If this is our constitutional tradition, as many argued, it is not a tradition of religious liberty. On Sun, Jul 6, 2014 at 1:01 AM, Douglas Laycock dlayc...@virginia.edu wrote: On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. 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. -- 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.)
RE: On a different strand of the seamless web
Sandy: I appreciate your point, and it is certainly a view held by many serious scholars. But my point is simply that it isn't at all obvious that this indeed involves an Establishment Clause violation - and that, especially it isn't obvious that this involves religious liberty (Alan's phrase, to which I was specifically responding), and indeed many serious scholars think the two are quite different. Among other things, being ordered to do (or not do) something strikes me as more clearly a matter of liberty than hearing things from the government. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 1:31 PM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I think that once one is hearing from government offensive theological views, the Establishment Clause is fully implicated. It is prudence, and nothing else, that legitimizes In God We Trust. (That's why the court had to invent an implausible standing doctrine to avoid deciding in Newdow's favor.) But I think there's a role for prudence, as against all principle all the time. Sandy Sent from my iPhone On Jul 6, 2014, at 2:26 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I take it that the authors of those briefs saw a law requiring someone to do something that they thought was sinful as different from a practice under which people end up hearing things from the government that they might find offensive or alienating. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, July 06, 2014 11:10 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I think Chips and Doug's key points in their posts are worth emphasizing. Many briefs supporting the town of Greece and the Court's opinion in that case treated the religious liberty arguments of plaintiffs with complete distain. The authors of many of those briefs and the same justices who wrote the opinion upholding coercive and discriminatory prayer practices in Town of Greece insisted that the religious liberty of Hobby Lobby must be protected. As Chip suggests, a tradition, or support for a legal regime, of religious liberty for me but not for you cannot be fairly described as a commitment to religious liberty. An incidental, but not insignificant, result of this kind one-sided support for religious liberty is the burden it places on those of us who try to defend and promote religious liberty and equality for people on both sides of the culture wars. Alan ___ 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 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: On a different strand of the seamless web
Even in the rare case of government-sponsored prayer where no one is coerced to participate, the government is gratuitously telling citizens that its religion is true and their religion is false. Telling people what religious beliefs are true was one important element of the classic establishments. But apart from all that, in the real world citizens who attend the meeting are forced to participate in the prayer. The government pressures religious dissenters directly in these situatins, and it creates the occasion for intense pressure on religious dissenters from their fellow citrizens. To deny or ignore all this, as the Court did in Greece, is simply out of touch with human reality. On Sun, 6 Jul 2014 21:57:27 -0700 Volokh, Eugene vol...@law.ucla.edu wrote: Sandy: I appreciate your point, and it is certainly a view held by many serious scholars. But my point is simply that it isn't at all obvious that this indeed involves an Establishment Clause violation - and that, especially it isn't obvious that this involves religious liberty (Alan's phrase, to which I was specifically responding), and indeed many serious scholars think the two are quite different. Among other things, being ordered to do (or not do) something strikes me as more clearly a matter of liberty than hearing things from the government. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 1:31 PM To: Law Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I think that once one is hearing from government offensive theological views, the Establishment Clause is fully implicated. It is prudence, and nothing else, that legitimizes In God We Trust. (That's why the court had to invent an implausible standing doctrine to avoid deciding in Newdow's favor.) But I think there's a role for prudence, as against all principle all the time. Sandy Sent from my iPhone On Jul 6, 2014, at 2:26 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I take it that the authors of those briefs saw a law requiring someone to do something that they thought was sinful as different from a practice under which people end up hearing things from the government that they might find offensive or alienating. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, July 06, 2014 11:10 AM To: Law Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I think Chips and Doug's key points in their posts are worth emphasizing. Many briefs supporting the town of Greece and the Court's opinion in that case treated the religious liberty arguments of plaintiffs with complete distain. The authors of many of those briefs and the same justices who wrote the opinion upholding coercive and discriminatory prayer practices in Town of Greece insisted that the religious liberty of Hobby Lobby must be protected. As Chip suggests, a tradition, or support for a legal regime, of religious liberty for me but not for you cannot be fairly described as a commitment to religious liberty. An incidental, but not insignificant, result of this kind one-sided support for religious liberty is the burden it places on those of us who try to defend and promote religious liberty and equality for people on both sides of the culture wars. Alan ___ 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. 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: On a different strand of the seamless web
I think individual humans, who believe that they have souls, do not forfeit their right to religious liberty when they incorporate their business. I believe that exemptions are about letting them live their lives, and restricting or prohibiting government-sponsored prayer is about letting everyone else live theirs. On Sun, 6 Jul 2014 13:47:49 -0700 Paul Finkelman paul.finkel...@yahoo.com wrote: unlike Doug, I do not believe corporations are people, that they have religious believes or that they have souls (that is of course an understatement); corporations are legal vehicles designed to make money for the investors and to shield the investors from having to use their own assets to cover losses and debts. I do not believe any faith thinks Hobby Lobby has an immortal soul, can go to heaven or hell, or that it prays. So, I guess I am unpersuaded that there can be an exemption issue for a corporation From: Douglas Laycock dlayc...@virginia.edu To: Paul Finkelman paul.finkel...@yahoo.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Scarberry, Mark mark.scarbe...@pepperdine.edu Sent: Sunday, July 6, 2014 11:36 AM Subject: Re: On a different strand of the seamless web Unlike Paul, I think the exemption issues and the government-sponsored prayer issues are very different. On Sun, 6 Jul 2014 01:36:45 -0700 Paul Finkelman paul.finkel...@yahoo.com wrote: Doug's point here seems to encapsulate what is the problem for so many of us. Those in the majority would make the rest of us burn incense, or listen to their prayers, or pay for their prayers or pray with them, or obey their views on sex and marriage and children, and we can go on and on. And many in the majority forget that they were once persecuted, whether it was Christians killed in Rome or Baptists whipped in Virginia, and now that they have the power, they would impose it on us, whether it is health care if you are unfortunate enough to have to work for Hobby Lobby or prayers if you are unfortunate enough to need something form the government of the Town of Greece. Paul Finkelman (writing from Granada, where the evidence and reminders of religious intolerance and persecution is everywhere) From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; Scarberry, Mark mark.scarbe...@pepperdine.edu Sent: Sunday, July 6, 2014 1:01 AM Subject: On a different strand of the seamless web On Sat, 5 Jul 2014 11:02:00 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: * * * * Christians died rather than burn a pinch of incense to the emperor. Yes they did. A point they entirely forget as they impose brief Christian prayer services on their fellow citizens at public meetings, and insist that it's no big deal to go through of motions of praying to a God you don't believe in. 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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 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.
