Re: The Charlotte City Ordinance and Religious Freedom
At the risk of repeating myself: The bathroom issue isn’t the main reason why the NC statute is unconstitutional. The main reason is that the NC statute affirmatively prohibits all local governments from enacting any anti-discrimination protections for LGBT individuals; it’s unconstitutional for the same reason that the ordinance at issue in Romer was unconstitutional. That’s why I presented the hypos that I did; I’ll reproduce them below. You’d agree that both of these hypothetical state laws would be unconstitutional, yes? 1. It’s 1963, and Charlotte has passed a law prohibiting employers and public accommodations from discriminating on the basis of race. North Carolina, responding to pressure from organizations with religious objections to the mixing of the races, passes a law wiping away the Charlotte race-discrimination law and prohibiting any local entities from barring race discrimination in employment or public accommodations. 2. It’s 1963, and Charlotte’s civil-rights activists are urging the city to pass a law prohibiting employers and public accommodations from discriminating on the basis of race. North Carolina, responding to pressure from organizations with religious objections to the mixing of the races, and seeking to ensure that African-Americans do not obtain any civil-rights protections at the local level, passes a law prohibiting religious discrimination and expressly prohibiting local entities from barring any other category of discrimination, including discrimination on the basis of race. On Apr 1, 2016, at 10:14 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: Greg, I'm having a hard time understanding the equal protection argument. Under the law, everybody gets to use a bathroom / shower / locker room. The facilities are equal (each has essentially the same equipment, putting urinals aside). The only question is who else will be in the bathroom / shower / locker room at the same time. Are you saying that there is a fundamental constitutional right to use a specific bathroom / shower / locker room based on the sex with which a person identifies at a certain point in time (keeping in mind that such identification is said to evolve over time)? Or are you saying that the privacy concerns that Eugene points out (including the religiously motivated privacy concerns) are not real and legitimate concerns? Will Will Esser ____ From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> Cc: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, April 1, 2016 5:27 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom Yes, when the state is singling out a disfavored group and acting to prevent them from obtaining local protection – or stripping away existing protection – then that is an equal-protection violation. The NC legislation went out of its way to explicitly preempt local discrimination ordinances, even as it took steps to preserve local authority in other areas addressed by the law (for instance, it preserved certain local wage authority in the minimum-wage portion of the law). Nothing, as I understand it, prevented the legislature from saying (1) here are the categories that we protect, but that (2) nothing prevents local jurisdictions from protecting additional groups. Let me tweak my race-discrimination hypo for a moment: It’s 1963, and Charlotte’s civil-rights activists are urging the city to pass a law prohibiting employers and public accommodations from discriminating on the basis of race. North Carolina, responding to pressure from organizations with religious objections to the mixing of the races, and seeking to ensure that African-Americans do not obtain any civil-rights protections at the local level, passes a law prohibiting religious discrimination and expressly prohibiting local entities from barring any other category of discrimination, including discrimination on the basis of race. Constitutional? On Apr 1, 2016, at 5:07 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: I don't think that was overlooked at all. In fact, Prof. Wallace specifically addressed that point when he talked about the fact that local NC municipalities have no power or authority of any kind other than what is expressly granted to them by the state (i.e. the "Dillon Rule"). That is simply how towns and cities are established in NC. By contrast, it appears the Dillon Rule is only followed for certain municipalities in Colorado (presumably not those involved in Romer since that case involved a constitutional amendment). This cite provides information on each state: http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powe
Re: The Charlotte City Ordinance and Religious Freedom
Yes, when the state is singling out a disfavored group and acting to prevent them from obtaining local protection – or stripping away existing protection – then that is an equal-protection violation. The NC legislation went out of its way to explicitly preempt local discrimination ordinances, even as it took steps to preserve local authority in other areas addressed by the law (for instance, it preserved certain local wage authority in the minimum-wage portion of the law). Nothing, as I understand it, prevented the legislature from saying (1) here are the categories that we protect, but that (2) nothing prevents local jurisdictions from protecting additional groups. Let me tweak my race-discrimination hypo for a moment: It’s 1963, and Charlotte’s civil-rights activists are urging the city to pass a law prohibiting employers and public accommodations from discriminating on the basis of race. North Carolina, responding to pressure from organizations with religious objections to the mixing of the races, and seeking to ensure that African-Americans do not obtain any civil-rights protections at the local level, passes a law prohibiting religious discrimination and expressly prohibiting local entities from barring any other category of discrimination, including discrimination on the basis of race. Constitutional? On Apr 1, 2016, at 5:07 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: I don't think that was overlooked at all. In fact, Prof. Wallace specifically addressed that point when he talked about the fact that local NC municipalities have no power or authority of any kind other than what is expressly granted to them by the state (i.e. the "Dillon Rule"). That is simply how towns and cities are established in NC. By contrast, it appears the Dillon Rule is only followed for certain municipalities in Colorado (presumably not those involved in Romer since that case involved a constitutional amendment). This cite provides information on each state: http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority<http://www.nlc.org/build-skills-and-networks/resources/cities-101/city-powers/local-government-authority> So, since local municipalities have no life or power on their own and the NC legislature decides to make it expressly clear that they have no life or power on their own in a certain area, then your argument seems to imply that the NC legislature cannot constitutionally remove that power once the local municipality has acted to pass a certain non-discrimination provision. If that is not your position, then I hope you will clarify. Because I certainly understand that the NC legislative bill affirmatively bars local municipalities from passing non-discrimination laws which are broader than the state bill. The point is that is how the Dillon Rule works. Will Esser ________ From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> To: Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>>; Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, April 1, 2016 4:54 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom No, I’m talking the difference between (1) deciding whom to protect and not protect, and (2) affirmatively barring local entities from protecting those groups – the latter is what’s happening in NC, and it continues to be overlooked in Professor Wallace’s and Will’s hypotheticals. The timing simply makes the context even clearer. On Apr 1, 2016, at 4:49 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: Greg, So if the NC legislature passes the antidiscrimination law a week before the Charlotte City Council takes up the proposed Charlotte ordinance, the NC bill is constitutional (since you agree that "NC can pass whatever antidiscrimination law it likes?") But since the NC legislature passed the antidiscrimination law after the Charlotte City Council passed the ordinance (but before that ordinance became law), that makes the NC legislature's bill unconstitutional? That seems to play right into Prof. Wallace's point about empowering a single locality in NC to forever bind the NC General Assembly if the locality acted first. Will Esser From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, April 1, 2016 4:12 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom That’s not what I’m saying at all. NC can pass whatever antidiscrimination law it likes, but it went out of its way to preempt local antidiscrimination protections. (The latter situati
Re: The Charlotte City Ordinance and Religious Freedom
No, I’m talking the difference between (1) deciding whom to protect and not protect, and (2) affirmatively barring local entities from protecting those groups – the latter is what’s happening in NC, and it continues to be overlooked in Professor Wallace’s and Will’s hypotheticals. The timing simply makes the context even clearer. On Apr 1, 2016, at 4:49 PM, Will Esser <willes...@yahoo.com<mailto:willes...@yahoo.com>> wrote: Greg, So if the NC legislature passes the antidiscrimination law a week before the Charlotte City Council takes up the proposed Charlotte ordinance, the NC bill is constitutional (since you agree that "NC can pass whatever antidiscrimination law it likes?") But since the NC legislature passed the antidiscrimination law after the Charlotte City Council passed the ordinance (but before that ordinance became law), that makes the NC legislature's bill unconstitutional? That seems to play right into Prof. Wallace's point about empowering a single locality in NC to forever bind the NC General Assembly if the locality acted first. Will Esser ____ From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Friday, April 1, 2016 4:12 PM Subject: Re: The Charlotte City Ordinance and Religious Freedom That’s not what I’m saying at all. NC can pass whatever antidiscrimination law it likes, but it went out of its way to preempt local antidiscrimination protections. (The latter situation is also what happened in Romer.) Let me end with the following analogy: It’s 1963, and Charlotte has passed a law prohibiting employers and public accommodations from discriminating on the basis of race. North Carolina, responding to pressure from organizations with religious objections to the mixing of the races, passes a law wiping away the Charlotte race-discrimination law and prohibiting any local entities from barring race discrimination in employment or public accommodations. Are you saying that NC state law would be constitutional? On Apr 1, 2016, at 4:06 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Nice quote about the dog. So, what your saying is that the US Constitution empowers a single locality in NC to bind the NC General Assembly from passing a statewide nondiscrimination law if it’s inconsistent with what that locality has adopted? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:56 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom Starting on a clean slate and defeating an amendment to add a particular protected category doesn’t seem suspect by itself. But adopting legislation that is designed to affirmatively removes the possibility of local antidiscrimination protections for all LGBT people (and as Doug and others have pointed out at length, the NC law does far more than revoke transgender people’s access to the restroom that is consistent with their gender) is quite a different story. I don’t think you can say it’s merely “not given [LGBT] persons everything they want” – it’s revoking existing local protections, and taking away the ability to obtain those local protections in the future. I hate to point out the obvious, but “[e]ven a dog knows the difference between being kicked and being stumbled over.” On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: You assume that not giving transgender persons everything they want impermissibly targets them because of the bare desire to harm. But that goes back to the earlier questions in my post. If the NC legislature, because of privacy and safety concerns, wants preempt local ordinances granting transgender persons access to the bathrooms of their choice, why is that necessarily “targeting” motivated by animus rather than a permissible balancing of conflicting privacy interests? Suppose SOGI is not included in a state's nondiscrimination laws. During the legislative session, a proposed amendment to include SOGI is introduced, but fails. Has the legislature “targeted” a discrete group in violation of Romer? What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. Same result? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:21 PM To: Law & Religion iss
Re: The Charlotte City Ordinance and Religious Freedom
That’s not what I’m saying at all. NC can pass whatever antidiscrimination law it likes, but it went out of its way to preempt local antidiscrimination protections. (The latter situation is also what happened in Romer.) Let me end with the following analogy: It’s 1963, and Charlotte has passed a law prohibiting employers and public accommodations from discriminating on the basis of race. North Carolina, responding to pressure from organizations with religious objections to the mixing of the races, passes a law wiping away the Charlotte race-discrimination law and prohibiting any local entities from barring race discrimination in employment or public accommodations. Are you saying that NC state law would be constitutional? On Apr 1, 2016, at 4:06 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Nice quote about the dog. So, what your saying is that the US Constitution empowers a single locality in NC to bind the NC General Assembly from passing a statewide nondiscrimination law if it’s inconsistent with what that locality has adopted? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:56 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom Starting on a clean slate and defeating an amendment to add a particular protected category doesn’t seem suspect by itself. But adopting legislation that is designed to affirmatively removes the possibility of local antidiscrimination protections for all LGBT people (and as Doug and others have pointed out at length, the NC law does far more than revoke transgender people’s access to the restroom that is consistent with their gender) is quite a different story. I don’t think you can say it’s merely “not given [LGBT] persons everything they want” – it’s revoking existing local protections, and taking away the ability to obtain those local protections in the future. I hate to point out the obvious, but “[e]ven a dog knows the difference between being kicked and being stumbled over.” On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: You assume that not giving transgender persons everything they want impermissibly targets them because of the bare desire to harm. But that goes back to the earlier questions in my post. If the NC legislature, because of privacy and safety concerns, wants preempt local ordinances granting transgender persons access to the bathrooms of their choice, why is that necessarily “targeting” motivated by animus rather than a permissible balancing of conflicting privacy interests? Suppose SOGI is not included in a state's nondiscrimination laws. During the legislative session, a proposed amendment to include SOGI is introduced, but fails. Has the legislature “targeted” a discrete group in violation of Romer? What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. Same result? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:21 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom It seems rather clear from all of the surrounding circumstances that the NC law did in fact target a discrete group, and did so for the purpose of abrogating specific local anti-discrimination laws protecting members of those groups. Courts will not have to pretend otherwise. On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Unlike Romer, NC law does not specifically target any discrete group, unless it targets by omission. If so, then it still has not targeted a omitted single group but rather several omitted groups. Also, under NC law, any nondiscrimination law passed by the state legislature will necessarily bind local governments from adopting laws inconsistent with it. So we’re back to the question of whether the Constitution requires that NC include SOGI in any nondiscrimination law it passes. If so, what other protected classes also must be included? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 2:59 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<m
Re: The Charlotte City Ordinance and Religious Freedom
Starting on a clean slate and defeating an amendment to add a particular protected category doesn’t seem suspect by itself. But adopting legislation that is designed to affirmatively removes the possibility of local antidiscrimination protections for all LGBT people (and as Doug and others have pointed out at length, the NC law does far more than revoke transgender people’s access to the restroom that is consistent with their gender) is quite a different story. I don’t think you can say it’s merely “not given [LGBT] persons everything they want” – it’s revoking existing local protections, and taking away the ability to obtain those local protections in the future. I hate to point out the obvious, but “[e]ven a dog knows the difference between being kicked and being stumbled over.” On Apr 1, 2016, at 3:45 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: You assume that not giving transgender persons everything they want impermissibly targets them because of the bare desire to harm. But that goes back to the earlier questions in my post. If the NC legislature, because of privacy and safety concerns, wants preempt local ordinances granting transgender persons access to the bathrooms of their choice, why is that necessarily “targeting” motivated by animus rather than a permissible balancing of conflicting privacy interests? Suppose SOGI is not included in a state's nondiscrimination laws. During the legislative session, a proposed amendment to include SOGI is introduced, but fails. Has the legislature “targeted” a discrete group in violation of Romer? What if Congress defeats proposed amendments to add SOGI to Titles VII and IX. Same result? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 3:21 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom It seems rather clear from all of the surrounding circumstances that the NC law did in fact target a discrete group, and did so for the purpose of abrogating specific local anti-discrimination laws protecting members of those groups. Courts will not have to pretend otherwise. On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Unlike Romer, NC law does not specifically target any discrete group, unless it targets by omission. If so, then it still has not targeted a omitted single group but rather several omitted groups. Also, under NC law, any nondiscrimination law passed by the state legislature will necessarily bind local governments from adopting laws inconsistent with it. So we’re back to the question of whether the Constitution requires that NC include SOGI in any nondiscrimination law it passes. If so, what other protected classes also must be included? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 2:59 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom I don’t have time to respond to all of this, but on the latter few paragraphs: there is a difference between a state (1) not providing statewide protection for members of a particular group, and (2) affirmatively preventing all local governments from protecting members of that group. The latter is what’s going on here, and it’s also what the Supreme Court held was unconstitutional in Romer v. Evans. On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: A couple of points on background . . . North Carolina is a “Dillon Rule” state where municipalities are limited to exercising those powers that are “expressly conferred” or “necessarily implied” from enabling legislation passed by the state legislature. The NC state legislature has never delegated to cities generally, or to Charlotte specifically, express authority to adopt public accommodations ordinances. Local ordinances must be in harmony with state law; whenever the two conflict, local law must give way. Because of NC Constitution’s prohibition on local acts that regulate labor or trade (Art. II, §24(1)(j), the NC legislature could not, as some have suggested, pass a law that simply overruled the Charlotte ordinance. The NC Supreme Court in 2003 held that the state legislature had acted unconstitutionally by authorizing a single county to enact and enforce a local
Re: The Charlotte City Ordinance and Religious Freedom
It seems rather clear from all of the surrounding circumstances that the NC law did in fact target a discrete group, and did so for the purpose of abrogating specific local anti-discrimination laws protecting members of those groups. Courts will not have to pretend otherwise. On Apr 1, 2016, at 3:17 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: Unlike Romer, NC law does not specifically target any discrete group, unless it targets by omission. If so, then it still has not targeted a omitted single group but rather several omitted groups. Also, under NC law, any nondiscrimination law passed by the state legislature will necessarily bind local governments from adopting laws inconsistent with it. So we’re back to the question of whether the Constitution requires that NC include SOGI in any nondiscrimination law it passes. If so, what other protected classes also must be included? From: Greg Lipper <lip...@au.org<mailto:lip...@au.org>> Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Date: Friday, April 1, 2016 at 2:59 PM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Subject: Re: The Charlotte City Ordinance and Religious Freedom I don’t have time to respond to all of this, but on the latter few paragraphs: there is a difference between a state (1) not providing statewide protection for members of a particular group, and (2) affirmatively preventing all local governments from protecting members of that group. The latter is what’s going on here, and it’s also what the Supreme Court held was unconstitutional in Romer v. Evans. On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory <walla...@campbell.edu<mailto:walla...@campbell.edu>> wrote: A couple of points on background . . . North Carolina is a “Dillon Rule” state where municipalities are limited to exercising those powers that are “expressly conferred” or “necessarily implied” from enabling legislation passed by the state legislature. The NC state legislature has never delegated to cities generally, or to Charlotte specifically, express authority to adopt public accommodations ordinances. Local ordinances must be in harmony with state law; whenever the two conflict, local law must give way. Because of NC Constitution’s prohibition on local acts that regulate labor or trade (Art. II, §24(1)(j), the NC legislature could not, as some have suggested, pass a law that simply overruled the Charlotte ordinance. The NC Supreme Court in 2003 held that the state legislature had acted unconstitutionally by authorizing a single county to enact and enforce a local ordinance prohibiting discrimination in employment. The court said that if the legislature was going to address employment discrimination by means of a state statute, it had to adopt a statewide law applicable to employers regardless of where they are located in the state. Interestingly, the court emphasized that authorizing such local statutes “could lead to a balkanization of the state’s employment discrimination laws, creating a patchwork of standards varying from county to county. The end result would be the ‘conglomeration of innumerable discordant communities’ that Article II, Section 24 was enacted to avoid.” Now to HB2 . . . The argument of those who criticize HB2 seems to come down to this: NC has impermissibly discriminated against and shown animus toward transgender persons because it did not give them the right to use the bathroom of their choice. Why does it necessarily show animus towards transgender persons if the NC legislature decides that it can’t give transgender persons everything they want? Why can’t NC say to transgender persons, “We understand your privacy needs and HB2 will specifically permit accommodations for transgender persons in public schools and other government facilities in the form of single-occupancy or controlled-use bathrooms. But we also have to balance your privacy needs with the privacy and safety concerns of non-transgendered persons. Given those concerns, we will require that multi-occupancy bathrooms, locker rooms, etc. be differentiated on the basis of biological sex.”? Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker rooms are a zero-sum game—whatever is gained by one side is lost by the other. The two transgendered plaintiffs in the lawsuit allege that using the bathroom other than the one of their choice will make them feel distressed and uncomfortable. While transgendered persons have legitimate privacy concerns, so do non-transgendered persons, who will be required to disrobe, shower, and perform personal bodily functions in the presence of those with intimate body parts different than their own. The reason we have separate sex-specific
Re: The Charlotte City Ordinance and Religious Freedom
I don’t have time to respond to all of this, but on the latter few paragraphs: there is a difference between a state (1) not providing statewide protection for members of a particular group, and (2) affirmatively preventing all local governments from protecting members of that group. The latter is what’s going on here, and it’s also what the Supreme Court held was unconstitutional in Romer v. Evans. On Apr 1, 2016, at 2:39 PM, Wallace, E. Gregory> wrote: A couple of points on background . . . North Carolina is a “Dillon Rule” state where municipalities are limited to exercising those powers that are “expressly conferred” or “necessarily implied” from enabling legislation passed by the state legislature. The NC state legislature has never delegated to cities generally, or to Charlotte specifically, express authority to adopt public accommodations ordinances. Local ordinances must be in harmony with state law; whenever the two conflict, local law must give way. Because of NC Constitution’s prohibition on local acts that regulate labor or trade (Art. II, §24(1)(j), the NC legislature could not, as some have suggested, pass a law that simply overruled the Charlotte ordinance. The NC Supreme Court in 2003 held that the state legislature had acted unconstitutionally by authorizing a single county to enact and enforce a local ordinance prohibiting discrimination in employment. The court said that if the legislature was going to address employment discrimination by means of a state statute, it had to adopt a statewide law applicable to employers regardless of where they are located in the state. Interestingly, the court emphasized that authorizing such local statutes “could lead to a balkanization of the state’s employment discrimination laws, creating a patchwork of standards varying from county to county. The end result would be the ‘conglomeration of innumerable discordant communities’ that Article II, Section 24 was enacted to avoid.” Now to HB2 . . . The argument of those who criticize HB2 seems to come down to this: NC has impermissibly discriminated against and shown animus toward transgender persons because it did not give them the right to use the bathroom of their choice. Why does it necessarily show animus towards transgender persons if the NC legislature decides that it can’t give transgender persons everything they want? Why can’t NC say to transgender persons, “We understand your privacy needs and HB2 will specifically permit accommodations for transgender persons in public schools and other government facilities in the form of single-occupancy or controlled-use bathrooms. But we also have to balance your privacy needs with the privacy and safety concerns of non-transgendered persons. Given those concerns, we will require that multi-occupancy bathrooms, locker rooms, etc. be differentiated on the basis of biological sex.”? Unfortunately, privacy rights in multi-occupancy bathrooms, showers, and locker rooms are a zero-sum game—whatever is gained by one side is lost by the other. The two transgendered plaintiffs in the lawsuit allege that using the bathroom other than the one of their choice will make them feel distressed and uncomfortable. While transgendered persons have legitimate privacy concerns, so do non-transgendered persons, who will be required to disrobe, shower, and perform personal bodily functions in the presence of those with intimate body parts different than their own. The reason we have separate sex-specific bathrooms and locker rooms is because men and women have different bodies and we want to protect privacy related to our bodies, not our gender identity. Transgender persons—at least the two plaintiffs in the NC lawsuit—do not want to use single-occupancy bathrooms because they say it stigmatizes them. A lot of people prefer single-occupancy bathrooms because it better suits their privacy preferences, but don’t feel stigmatized. So, back to the question: Why is NC constitutionally required to balance its citizens’ privacy interests in favor of permitting transgender persons access to the bathroom or locker room of their choice? Must it give transgender persons everything they ask for to avoid showing animus? Regarding the new NC public accommodation law, the argument is similar: NC has discriminated against and shown animus toward gays, lesbians, and transgender persons because it did not include them as protected classes in HB2. Federal public accommodations law protects only against discrimination on the basis of race, color, religion, and national origin. Federal laws that forbid discrimination in employment and education do not specify sexual orientation, gender identity, and gender expression as protected classes. Public accommodation laws don’t include sexual orientation and gender identity in 32 states and employment discrimination laws in 30 states do
Re: New order in Zubik
I have a couple of preliminary thoughts about this order: http://blogs.harvard.edu/billofhealth/2016/03/29/about-that-order-for-supplemental-briefing-in-zubik-v-burwell/ On Mar 29, 2016, at 2:41 PM, Laycock, H Douglas (hdl5c)> wrote: The Court wants supplemental briefing on whether the government can make the insurance companies do this without requiring any notice or letter from the employer. 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: Zubik preview series
Here is the sixth and final post of my Zubik series on the Bill of Health blog: http://blogs.harvard.edu/billofhealth/2016/03/22/zubik-v-burwell-part-6-the-accommodation-is-the-least-restrictive-option/ Hope to see some of you at SCOTUS on Wednesday. Greg On Mar 22, 2016, at 6:16 PM, Greg Lipper <lip...@au.org<mailto:lip...@au.org>> wrote: If anyone’s looking for yet more stuff to read about Zubik and the contraception cases, I’m working on a six-part series over at Harvard Law School’s Bill of Health blog. Parts 1 through 5 are below; part 6 will be up later tonight. http://blogs.harvard.edu/billofhealth/2016/03/16/zubik-v-burwell-part-1-why-paperwork-does-not-burden-religious-exercise/ http://blogs.harvard.edu/billofhealth/2016/03/17/zubik-v-burwell-part-2-the-religious-objectors-who-cried-wolf/ http://blogs.harvard.edu/billofhealth/2016/03/19/zubik-v-burwell-part-3-birth-control-is-not-abortion/ http://blogs.harvard.edu/billofhealth/2016/03/21/zubik-v-burwell-part-4-the-compelling-interest-in-contraceptive-coverage/ http://blogs.harvard.edu/billofhealth/2016/03/22/zubik-v-burwell-part-5-these-exceptions-are-unexceptional/ Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church & State ___ 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.
Zubik preview series
If anyone’s looking for yet more stuff to read about Zubik and the contraception cases, I’m working on a six-part series over at Harvard Law School’s Bill of Health blog. Parts 1 through 5 are below; part 6 will be up later tonight. http://blogs.harvard.edu/billofhealth/2016/03/16/zubik-v-burwell-part-1-why-paperwork-does-not-burden-religious-exercise/ http://blogs.harvard.edu/billofhealth/2016/03/17/zubik-v-burwell-part-2-the-religious-objectors-who-cried-wolf/ http://blogs.harvard.edu/billofhealth/2016/03/19/zubik-v-burwell-part-3-birth-control-is-not-abortion/ http://blogs.harvard.edu/billofhealth/2016/03/21/zubik-v-burwell-part-4-the-compelling-interest-in-contraceptive-coverage/ http://blogs.harvard.edu/billofhealth/2016/03/22/zubik-v-burwell-part-5-these-exceptions-are-unexceptional/ Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church & State ___ 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: Eugene's Blog Post on Liberals and Exemption Rights
Beyond the question of commerce/non-commerce, there is a broader distinction between accommodations that harm others and accommodations that do not. This distinction was reflected in the Supreme Court’s opinions in United States v. Lee (among other pre-Smith cases), Cutter v. Wilkinson (upholding RLUIPA against Establishment Clause challenge), and in Justice Ginsburg’s dissent in Hobby Lobby and concurrence in Holt v. Hobbs. Quite apart from Hobby Lobby’s status as a for-profit corporation, we (Americans United) opposed the Hobby Lobby exemption because it had the effect of stripping otherwise available healthcare coverage from employees’ compensation. We would have opposed that exemption even if the company was not a for-profit corporation – there were innocent third parties who were losing an important part of their employment compensation as a result of the exemption. There are some accommodations (a prisoner who wants to wear a beard, an individual who wants to use peyote (or wine, for that matter) as part of a religious ceremony, etc. etc.) that do not harm third parties. There are others (withholding healthcare from others, exemptions from antidiscrimination law) that harm third parties directly. That distinction was respected in the pre-Smith cases and highlighted again in Cutter, but it has come under attack in recent rounds of RFRA litigation. On Apr 1, 2015, at 2:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: “[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses. I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection?Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions. The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed. http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece:http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ (The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as patently frivolous. Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan
Re: Amazing what Hobby Lobby has wrought
Ryan’s candor is refreshing: he very much wants businesses to be able to discriminate against same-sex couples, and he thinks that state RFRAs are important to that goal. That’s precisely why sports leagues, pharmaceutical companies, technology companies, and even certain houses of worship are reacting so strongly to the Indiana RFRA. On Mar 27, 2015, at 2:41 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The Green family not paying for an employee's abortifacients, and a 70-year old grandmother not making floral arrangements for a same-sex wedding is becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. Good to know. The reactions to AZ and IN RFRAs strike me much more about the political left wanting to impose its values on Americans than anything to do with religious liberty itself. Strikes me much more about those who favor government coercion to impose comprehensive liberalism no longer mouthing the platitudes of Rawlsian political liberalism. So, yes, you're right, there has been a major shift. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.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
Re: Amazing what Hobby Lobby has wrought
The Supreme Court hadn’t decided Hobby Lobby yet, but several federal appeals courts (including the 10th Circuit in the Hobby Lobby case) had already ruled in favor of corporations wanting to exclude contraceptive coverage from their insurance policies, and in the process adopting extremely broad understandings of federal RFRA. So there was certainly concern (well-founded, as it turns out) that the Supreme Court would rule in favor of Hobby Lobby and that it would do so in a manner that vastly changed what most people thought they were supporting in 1993. Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 On Mar 27, 2015, at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see 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: Simple Hobby Lobby question
The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Hobby Lobby strained efforts to avoid the parade of horribles
Michael McConnell has a post on Volokh Conspiracy addressing some of the issues that came up at the Hobby Lobby oral argument: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/03/27/prof-michael-mcconnell-stanford-on-the-hobby-lobby-arguments/ There’s a lot to discuss in his post, but I’d like to focus on his points about the parade of horribles – in particular, that we needn’t worry about Hobby Lobby creating precedent that deprives employees of other forms of healthcare that were discussed at oral argument and in the briefs. There are, I suppose, specific arguments one could make about other forms of healthcare (Clement and McConnell both mentioned the herd-immunity justification for vaccines, for instance); and of course one can always argue more generally that each case will be evaluated on its own merits – but of course, the prior cases create precedent that is binding on the future cases and compels the same outcome in similar situations. But let’s assume for a moment that Professor McConnell is right – that courts will figure out some way to distinguish contraception from other forms of healthcare – such as psychiatric care, blood transfusions, vaccines, and prescription drugs covered in pork-based gelatin – to which other employers’ owners might have religious objections. This type of reasoning really seems to reinforce the mistaken view that somehow contraception coverage (or healthcare related to women’s reproductive needs) is not “real” healthcare, and relatedly that sexuality-based objections of certain Christians to certain forms of healthcare are more important than other religious-based objections to healthcare that does not implicate issues of sexuality and gender. (Clement made a similar point at oral argument, attempting to distinguish contraception on the ground that it’s so religiously sensitive, so fraught with religious controversy.”) If we are uncomfortable – as we all seem to be – with allowing a company to deprive employees of coverage for vaccinations, gelatin-covered pills, psychiatric care, or blood transfusions on the basis of its owner’s religious beliefs, then the proper outcome is to prevent companies from depriving their employees of *any* required insurance coverage – not to strain to reach a result that imposes unique burdens on care important to women and reproductive autonomy. Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 ___ 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 and Abortion
You appear to be comparing apples to oranges. The Guttmacher brief isn’t referring only to emergency contraception; in particular, it’s pointing to the benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to cover. (IUD is both more effective and more expensive than virtually all over forms of contraception.) On Mar 17, 2014, at 10:49 AM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what everyone agrees are abortions (the result in 40% of unintended pregnancies). This is an empirical claim, yet for which there is no empirical evidence. That is, there is absolutely no empirical evidence showing that cost-free contraception dramatically reduces the rate of abortion. To the contrary, out of 11 randomized trials of the provision of emergency contraception (some of these trials occurred in developing countries where contraception is far less available compared to the U.S.), there was no evidence that even pregnancy rates were affected at all, let alone abortion rates. http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1 From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com Date: Fri, 14 Mar 2014 09:50:53 -0400 Subject: Re: Hobby Lobby and Abortion To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu CC: wdellin...@omm.commailto:wdellin...@omm.com Thanks very much, Tom and Jim, for teeing up these issues. A few points about the abortion angle, most of which I discussed in further detail back in December (http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html: 1. Preventing implantation is not considered an abortion under the law, and in the mainstream medical and scientific communities. 2. I emphatically agree, however (as I explained in my December post), that that does not matter for purposes of the RFRA claims in these cases since, whatever nomenclature one might use, a small number of persons and religions (including the plaintiffs here) think that preventing implantation ends a life, that deliberately doing so is immoral, and that some level or type of complicity with such immoral conduct is itself immoral. 3. None of the 18 FDA-approved methods is designed to prevent implantation, and it's unclear that any of them actually does so. Moreover, those that do (if any) may do so only very rarely. 4. It is true that, according to the FDA, the four methods named in the HL complaint -- two IUDs, ella and Plan B -- may prevent implantation in a small number of cases. But . . . 5. So, too, might several other of the 18 methods, including, most significantly, the birth-control pill. Thus, even on the plaintiffs' own theories, the HL and CW cases are not limited to four methods -- the exemption would be of unknown breadth. 6. In the vast majority of cases in which their employees would be reimbursed for the purchase of contraception if the Court denies the HL and CW RFRA claims -- perhaps all of the cases (we just don't know) -- there would not be any prevention of implantation, and thus no ending of life on anyone's view, and thus no complicity issue. 7. Assuming there are a small number of cases that result in implantation, that will virtually never be the object of the employees' use of the birth control, which obviously would be at least relevant to the moral calculus for many, even if not all, persons who think that implantation ends a life. 8. Thus, even on the Greens' view of implantation and life, and their idiosyncratic view of complicity, excluding four or more FDA-approved methods from their plans will deny women their right to cost-free access in a huge number of cases (perhaps all of them) where there would not be any sin, let alone complicity . . . and would, at most, prevent the alleged complicity in a tiny handful of (unidentifiable) cases. I am not here making any argument about how that fact should bear on the substantial burden analysis -- a complicated question that neither I or anyone else (to my knowledge) has yet written on. But I do think that comparison, that ratio, fairly identifies the problem that the cases present. 9. The Court is, in any event, unlikely to issue a ruling limited to possible implantation-prevention methods. The scope of such a ruling would be unclear, for one thing, since (as mentioned above) we don't even know what subset of the FDA methods would be covered. More importantly, such a ruling would do nothing to decide the vast majority of the cases that have been filed, which deal with contraception as such, and are not focused on possible implantation-prevention. I doubt the Justices are inclined to issue such a narrow and ineffective
Re: Hobby Lobby and Abortion
What kind of study would you want to see: one that withholds effective contraception from people for 10–20+ years and then checks to see how many people had unwanted pregnancies (and, in turn, how many had abortions)? Making IUD affordable to more people will indeed cause more people to use IUD (Guttmacher and other briefs have good stats on that); and unless you think that low-income women have abortions for sport, reducing the rate of unwanted pregnancy will of course reduce the rate of abortion — especially among lower-income women. If you are concerned that the society-wide take-up rate of IUDs won't be high enough, then the last thing you would want to do is deprive more women of access to IUD. And let's not forget the other side of the ledger: there is little to no modern evidence that IUD (or emergency contraception) ever acts after fertilization, let alone that they regularly do so. On Mar 17, 2014, at 12:09 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: There is no good empirical evidence that providing cost-free IUDs will dramatically reduce abortions either. (There's the St. Louis study, but it is unreliable in several ways, most prominently including the lack of a control group and the almost-certain presence of selection bias, and even if that study were remotely valid, there is zero evidence that the society-wide take-up rate of IUDs would be high enough to dramatically affect the abortion rate). From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 15:11:43 + You appear to be comparing apples to oranges. The Guttmacher brief isn’t referring only to emergency contraception; in particular, it’s pointing to the benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to cover. (IUD is both more effective and more expensive than virtually all over forms of contraception.) On Mar 17, 2014, at 10:49 AM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what everyone agrees are abortions (the result in 40% of unintended pregnancies). This is an empirical claim, yet for which there is no empirical evidence. That is, there is absolutely no empirical evidence showing that cost-free contraception dramatically reduces the rate of abortion. To the contrary, out of 11 randomized trials of the provision of emergency contraception (some of these trials occurred in developing countries where contraception is far less available compared to the U.S.), there was no evidence that even pregnancy rates were affected at all, let alone abortion rates. http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1 From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com Date: Fri, 14 Mar 2014 09:50:53 -0400 Subject: Re: Hobby Lobby and Abortion To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu CC: wdellin...@omm.commailto:wdellin...@omm.com Thanks very much, Tom and Jim, for teeing up these issues. A few points about the abortion angle, most of which I discussed in further detail back in December (http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html: 1. Preventing implantation is not considered an abortion under the law, and in the mainstream medical and scientific communities. 2. I emphatically agree, however (as I explained in my December post), that that does not matter for purposes of the RFRA claims in these cases since, whatever nomenclature one might use, a small number of persons and religions (including the plaintiffs here) think that preventing implantation ends a life, that deliberately doing so is immoral, and that some level or type of complicity with such immoral conduct is itself immoral. 3. None of the 18 FDA-approved methods is designed to prevent implantation, and it's unclear that any of them actually does so. Moreover, those that do (if any) may do so only very rarely. 4. It is true that, according to the FDA, the four methods named in the HL complaint -- two IUDs, ella and Plan B -- may prevent implantation in a small number of cases. But . . . 5. So, too, might several other of the 18 methods, including, most significantly, the birth-control pill. Thus, even on the plaintiffs' own theories, the HL and CW cases are not limited to four methods -- the exemption would be of unknown breadth. 6. In the vast majority of cases in which their employees would be reimbursed for the purchase of contraception if the Court denies the HL and CW RFRA claims -- perhaps all of the cases (we just don't know) -- there would not be any
Re: Hobby Lobby and Abortion
A contraceptive method with an upfront cost of up to $1000 is by no means relatively cheap, especially for someone with a low income (that is, someone least able to afford an unplanned pregnancy/birth). On Mar 17, 2014, at 3:40 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: Withholding effective contraception is a straw man; the only question here is whether making a widely available and relatively cheap consumer product free at the point of purchase will magically have a dramatic impact on the abortion rate. There is absolutely no reason to think that it would. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 16:38:27 + What kind of study would you want to see: one that withholds effective contraception from people for 10–20+ years and then checks to see how many people had unwanted pregnancies (and, in turn, how many had abortions)? Making IUD affordable to more people will indeed cause more people to use IUD (Guttmacher and other briefs have good stats on that); and unless you think that low-income women have abortions for sport, reducing the rate of unwanted pregnancy will of course reduce the rate of abortion — especially among lower-income women. If you are concerned that the society-wide take-up rate of IUDs won't be high enough, then the last thing you would want to do is deprive more women of access to IUD. And let's not forget the other side of the ledger: there is little to no modern evidence that IUD (or emergency contraception) ever acts after fertilization, let alone that they regularly do so. On Mar 17, 2014, at 12:09 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: There is no good empirical evidence that providing cost-free IUDs will dramatically reduce abortions either. (There's the St. Louis study, but it is unreliable in several ways, most prominently including the lack of a control group and the almost-certain presence of selection bias, and even if that study were remotely valid, there is zero evidence that the society-wide take-up rate of IUDs would be high enough to dramatically affect the abortion rate). From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 15:11:43 + You appear to be comparing apples to oranges. The Guttmacher brief isn’t referring only to emergency contraception; in particular, it’s pointing to the benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to cover. (IUD is both more effective and more expensive than virtually all over forms of contraception.) On Mar 17, 2014, at 10:49 AM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what everyone agrees are abortions (the result in 40% of unintended pregnancies). This is an empirical claim, yet for which there is no empirical evidence. That is, there is absolutely no empirical evidence showing that cost-free contraception dramatically reduces the rate of abortion. To the contrary, out of 11 randomized trials of the provision of emergency contraception (some of these trials occurred in developing countries where contraception is far less available compared to the U.S.), there was no evidence that even pregnancy rates were affected at all, let alone abortion rates. http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1 From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com Date: Fri, 14 Mar 2014 09:50:53 -0400 Subject: Re: Hobby Lobby and Abortion To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu CC: wdellin...@omm.commailto:wdellin...@omm.com Thanks very much, Tom and Jim, for teeing up these issues. A few points about the abortion angle, most of which I discussed in further detail back in December (http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html: 1. Preventing implantation is not considered an abortion under the law, and in the mainstream medical and scientific communities. 2. I emphatically agree, however (as I explained in my December post), that that does not matter for purposes of the RFRA claims in these cases since, whatever nomenclature one might use, a small number of persons and religions (including the plaintiffs here) think that preventing implantation ends a life, that deliberately doing so is immoral, and that some level or type of complicity with such immoral conduct is itself immoral. 3. None of the 18 FDA-approved methods is designed to prevent
Re: Hobby Lobby and Abortion
I don't know how you are quantifying dramatic, but 10 percent of women of child bearing age (that is, 10 percent of 62 million women) is a pretty big number. If even a small fraction of those women avoid the need for an abortion as a result, that is tens or hundreds of thousands of abortions prevented. On Mar 17, 2014, at 4:20 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: But there's no evidence that more than, say, 10% or so of women would use IUDs even if they're free. So again, no evidence for dramatic impact on abortion. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 19:45:46 + A contraceptive method with an upfront cost of up to $1000 is by no means relatively cheap, especially for someone with a low income (that is, someone least able to afford an unplanned pregnancy/birth). On Mar 17, 2014, at 3:40 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: Withholding effective contraception is a straw man; the only question here is whether making a widely available and relatively cheap consumer product free at the point of purchase will magically have a dramatic impact on the abortion rate. There is absolutely no reason to think that it would. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 16:38:27 + What kind of study would you want to see: one that withholds effective contraception from people for 10–20+ years and then checks to see how many people had unwanted pregnancies (and, in turn, how many had abortions)? Making IUD affordable to more people will indeed cause more people to use IUD (Guttmacher and other briefs have good stats on that); and unless you think that low-income women have abortions for sport, reducing the rate of unwanted pregnancy will of course reduce the rate of abortion — especially among lower-income women. If you are concerned that the society-wide take-up rate of IUDs won't be high enough, then the last thing you would want to do is deprive more women of access to IUD. And let's not forget the other side of the ledger: there is little to no modern evidence that IUD (or emergency contraception) ever acts after fertilization, let alone that they regularly do so. On Mar 17, 2014, at 12:09 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: There is no good empirical evidence that providing cost-free IUDs will dramatically reduce abortions either. (There's the St. Louis study, but it is unreliable in several ways, most prominently including the lack of a control group and the almost-certain presence of selection bias, and even if that study were remotely valid, there is zero evidence that the society-wide take-up rate of IUDs would be high enough to dramatically affect the abortion rate). From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 15:11:43 + You appear to be comparing apples to oranges. The Guttmacher brief isn’t referring only to emergency contraception; in particular, it’s pointing to the benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to cover. (IUD is both more effective and more expensive than virtually all over forms of contraception.) On Mar 17, 2014, at 10:49 AM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what everyone agrees are abortions (the result in 40% of unintended pregnancies). This is an empirical claim, yet for which there is no empirical evidence. That is, there is absolutely no empirical evidence showing that cost-free contraception dramatically reduces the rate of abortion. To the contrary, out of 11 randomized trials of the provision of emergency contraception (some of these trials occurred in developing countries where contraception is far less available compared to the U.S.), there was no evidence that even pregnancy rates were affected at all, let alone abortion rates. http://clacaidigital.info:8080/xmlui/bitstream/handle/123456789/194/Advance_provision_of_EC_for_pregnancy_prevention.pdf?sequence=1 From: lederman.ma...@gmail.commailto:lederman.ma...@gmail.com Date: Fri, 14 Mar 2014 09:50:53 -0400 Subject: Re: Hobby Lobby and Abortion To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu CC: wdellin...@omm.commailto:wdellin...@omm.com Thanks very much, Tom and Jim, for teeing up these issues. A few points about the abortion angle, most of
Re: Hobby Lobby and Abortion
So we should not try to reduce unplanned pregnancies based on logical understanding of human psychology, economics, and biology — and based on solid empirical data about IUD effectiveness and patient behavior in response to its cost — even when a randomized study would be impractical and probably unethical? That is a remarkably rigid view, and as a practical matter it would prevent the government from ever making policy in the face of any religious objections. On Mar 17, 2014, at 5:18 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: I'm looking for actual evidence, not speculation that is uninformed by any data on 1) what the actual takeup rate might be compared to the takeup rate right now, 2) what the relative improvement would be in the rate of pregnancy prevention, and 3) how many of the allegedly prevented pregnancies might have ended in abortion (given the particulars of the people who are incentivized on the margin to install IUDs by the new policy). These questions cannot be satisfactorily answered without a randomized experiment. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 20:31:32 + I don't know how you are quantifying dramatic, but 10 percent of women of child bearing age (that is, 10 percent of 62 million women) is a pretty big number. If even a small fraction of those women avoid the need for an abortion as a result, that is tens or hundreds of thousands of abortions prevented. On Mar 17, 2014, at 4:20 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: But there's no evidence that more than, say, 10% or so of women would use IUDs even if they're free. So again, no evidence for dramatic impact on abortion. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 19:45:46 + A contraceptive method with an upfront cost of up to $1000 is by no means relatively cheap, especially for someone with a low income (that is, someone least able to afford an unplanned pregnancy/birth). On Mar 17, 2014, at 3:40 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: Withholding effective contraception is a straw man; the only question here is whether making a widely available and relatively cheap consumer product free at the point of purchase will magically have a dramatic impact on the abortion rate. There is absolutely no reason to think that it would. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 16:38:27 + What kind of study would you want to see: one that withholds effective contraception from people for 10–20+ years and then checks to see how many people had unwanted pregnancies (and, in turn, how many had abortions)? Making IUD affordable to more people will indeed cause more people to use IUD (Guttmacher and other briefs have good stats on that); and unless you think that low-income women have abortions for sport, reducing the rate of unwanted pregnancy will of course reduce the rate of abortion — especially among lower-income women. If you are concerned that the society-wide take-up rate of IUDs won't be high enough, then the last thing you would want to do is deprive more women of access to IUD. And let's not forget the other side of the ledger: there is little to no modern evidence that IUD (or emergency contraception) ever acts after fertilization, let alone that they regularly do so. On Mar 17, 2014, at 12:09 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: There is no good empirical evidence that providing cost-free IUDs will dramatically reduce abortions either. (There's the St. Louis study, but it is unreliable in several ways, most prominently including the lack of a control group and the almost-certain presence of selection bias, and even if that study were remotely valid, there is zero evidence that the society-wide take-up rate of IUDs would be high enough to dramatically affect the abortion rate). From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 15:11:43 + You appear to be comparing apples to oranges. The Guttmacher brief isn’t referring only to emergency contraception; in particular, it’s pointing to the benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to cover. (IUD is both more effective and more expensive than virtually all over forms of contraception.) On Mar 17, 2014, at 10:49 AM, Stuart Buck
Re: Hobby Lobby and Abortion
I should add that the rigidity of this position is especially remarkable in light of the absence of any demonstrable evidence that any IUD has ever itself acted on even a single fertilized egg, let alone a significant number… On Mar 17, 2014, at 5:18 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: I'm looking for actual evidence, not speculation that is uninformed by any data on 1) what the actual takeup rate might be compared to the takeup rate right now, 2) what the relative improvement would be in the rate of pregnancy prevention, and 3) how many of the allegedly prevented pregnancies might have ended in abortion (given the particulars of the people who are incentivized on the margin to install IUDs by the new policy). These questions cannot be satisfactorily answered without a randomized experiment. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 20:31:32 + I don't know how you are quantifying dramatic, but 10 percent of women of child bearing age (that is, 10 percent of 62 million women) is a pretty big number. If even a small fraction of those women avoid the need for an abortion as a result, that is tens or hundreds of thousands of abortions prevented. On Mar 17, 2014, at 4:20 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: But there's no evidence that more than, say, 10% or so of women would use IUDs even if they're free. So again, no evidence for dramatic impact on abortion. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 19:45:46 + A contraceptive method with an upfront cost of up to $1000 is by no means relatively cheap, especially for someone with a low income (that is, someone least able to afford an unplanned pregnancy/birth). On Mar 17, 2014, at 3:40 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: Withholding effective contraception is a straw man; the only question here is whether making a widely available and relatively cheap consumer product free at the point of purchase will magically have a dramatic impact on the abortion rate. There is absolutely no reason to think that it would. From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 16:38:27 + What kind of study would you want to see: one that withholds effective contraception from people for 10–20+ years and then checks to see how many people had unwanted pregnancies (and, in turn, how many had abortions)? Making IUD affordable to more people will indeed cause more people to use IUD (Guttmacher and other briefs have good stats on that); and unless you think that low-income women have abortions for sport, reducing the rate of unwanted pregnancy will of course reduce the rate of abortion — especially among lower-income women. If you are concerned that the society-wide take-up rate of IUDs won't be high enough, then the last thing you would want to do is deprive more women of access to IUD. And let's not forget the other side of the ledger: there is little to no modern evidence that IUD (or emergency contraception) ever acts after fertilization, let alone that they regularly do so. On Mar 17, 2014, at 12:09 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: There is no good empirical evidence that providing cost-free IUDs will dramatically reduce abortions either. (There's the St. Louis study, but it is unreliable in several ways, most prominently including the lack of a control group and the almost-certain presence of selection bias, and even if that study were remotely valid, there is zero evidence that the society-wide take-up rate of IUDs would be high enough to dramatically affect the abortion rate). From: lip...@au.orgmailto:lip...@au.org To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Hobby Lobby and Abortion Date: Mon, 17 Mar 2014 15:11:43 + You appear to be comparing apples to oranges. The Guttmacher brief isn’t referring only to emergency contraception; in particular, it’s pointing to the benefits of things like IUD, which Hobby Lobby/Conestoga Wood also refuse to cover. (IUD is both more effective and more expensive than virtually all over forms of contraception.) On Mar 17, 2014, at 10:49 AM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what everyone agrees are abortions (the result in 40% of unintended
Re: letter opposing Mississippi RFRA
Yes, indeed. And whatever “substantial burden” means, it most certainly does not mean – and could not be applied by courts, with a straight face, to mean – burdens with respect to “long held and clearly stated teaching of two of the largest religious groups in the country.” On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that did not involve the commercial sector -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, March 11, 2014 12:21 PM To: Law Religion issues for Law Academics Subject: letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452tel:%28678%29%20641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: The pain of discrimination and the role of government
I agree with Paul’s comments about most of Greg S's hypotheticals. And to put a finer point on my post from yesterday – my bakery would be required to serve the evangelicals even if they were going to serve my baked goods at a church service featuring worship at odds with my own religious beliefs. And that is good for religious freedom: just as race-discrimination laws also prohibit me from refusing to sell a cake to be served at a mixed-race wedding, religious-discrimination laws prohibit me from refusing to sell a cake to be served at a religious ceremony that I oppose (indeed, even if certain views expressed at that religious ceremony are becoming increasingly disfavored in society at large). Greg Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 On Feb 28, 2014, at 10:35 PM, Sisk, Gregory C. gcs...@stthomas.edu wrote: But of course! I quite agree that's how it should be. I too believe that our two Christian evangelists should be able to walk into Greg Lipper's hypothetical bakery and be served. If that were all that is on the table for legal regulation, then we all could breath a sigh of relief and quickly come to an amicable agreement on the lion's share of the matter. I might quibble that an expansion of anti-discrimination laws to accomplish this simple purpose is a solution in search of a problem, given that there are no reports in the media of an epidemic of bakeries or grocery stores or other merchants that are refusing to take money from people until after checking their sexual orientation or religious or other identification card. In addition, we might still have a much lower stakes debate about whether even the principle of basic affording of basic merchant goods to everyone should admit to a rare exception where the harm is minimal and the idiosyncratic religious claim is severe. But, again, I'd acknowledge that we’d be at least 99 percent of the way there if this were all we are talking about. Unfortunately, unless I've misread the many posts over the last couple of weeks, this does not appear to be all that is demanded by advocates of a broader anti-discrimination regime that admits of no religious liberty exceptions. Suppose that our two Christian evangelists walk into Greg Lipper’s hypothetical bakery and the baker says, “you’re welcome to come in and buy baked goods, but I won’t allow any Christian leafleting or prosyletizing of my customers.” I imagine that nearly all of us would agree that the baker would be well within his rights to refuse to allow his bakery to be a venue to promote the evangelist's message. Would everyone still agree if the baker applies this no-leafletting policy in a “discriminatory” way? Suppose that the baker does not permit the Christian evangelists to hand out flyers, but then he circulates for customer signatures his own petition asking Governor Brewer to veto the Religious Freedom Restoration Act amendments? I would hope that most of us would stand by the baker here,. But such a freedom for the baker to so discriminate is hard to reconcile with some comments on this list suggesting a more absolute value for anti-discrimination. Or suppose that our intrepid Christian evangelists, exhausted after a Friday afternoon of preaching and receiving regular epithets from a hostile street audience, arrive at our baker’s door, hungry and thirsty, only to find the baker putting out the closed sign, as he explains, “I’m Jewish, so I’m closing on Friday evening as the Sabbath is beginning.” Should our Christian evangelists be heard to make a legal claim that the baker is discriminating against non-Jews by denying them service on a Friday evening -- and on explicitly religious grounds no less? Again, I hope list members would not reach that conclusion. But then I've been reading posted messages saying that merchants of differing religious views should be required to adjust to the demands of the majority. In sum, my prior points about the over- and mis-use of discrimination to characterize choices, as well as the danger of allowing government to pressure people into proper and decent behavior, do not disappear when we reach the door to a business. Greg Sisk From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Greg Lipper [lip...@au.org] Sent: Friday, February 28, 2014 7:25 PM To: Law Religion issues for Law Academics Subject: Re: The pain of discrimination and the role of government But if those evangelicals walked into the corner bakery afterwards, the law would require that they be served – even if the owner hated their religious beliefs. And that’s how it should be, I think. On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Over
Re: The pain of discrimination and the role of government
But if those evangelicals walked into the corner bakery afterwards, the law would require that they be served – even if the owner hated their religious beliefs. And that’s how it should be, I think. On Feb 28, 2014, at 8:11 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Over the past day, I’ve withheld from posting to the list, wanting to hear other points of view, see how the conversation unfolds, and learn from others (especially from those with whom I tend to disagree and perspectives that contrast with mine). I hope what follows may be woven into the tapestry of today’s other posts. In reading posts poignantly describing the pain of suffering discrimination, I was reminded of something that I observed on the streets of a major American city to which I was traveling. On a major downtown pedestrian thoroughfare, two young people, looking to be in their early twenties, were handing out flyers and trying to engage passers-by in conversation. Their t-shirts, leaflets, and spoken words readily identified them as evangelical Christians preaching the Gospel. Their persistence in the face of a rather disdainful audience, as well as the tone and message, confirmed that they were speaking from the heart and acting in furtherance of what they understood to be a genuine calling to share good news with others. The response was anything but receptive; indeed, it was, no two ways around it, frequently hostile and, yes, bigoted. While most of those walking by simply ignored the two or gave them a cold stare as they passed, several made derogatory remarks, laughed or jeered loudly, or even told them to “[epithet deleted] off.” No one physically accosted the two, and the comments did not provoke any violence, so I don’t think it could be called disorderly conduct. But the targeted response was despicable in manner. The two evangelists never responded in kind, instead saying “God bless you” or “Jesus loves you” to each person. But it was plain that the hostile treatment left its psychological mark. The young woman, who I am guessing was the veteran at street ministry, seemed less impacted. But the young man was shaken, as I could tell from his mannerisms, what looked to be tears in his eyes, and the quaver that appeared in his voice after he received a particularly vituperative comment. Now what these two evangelical Christians experienced was plainly “discrimination.” And it was blatant and invidious discrimination. The remarks were not merely negative and disrespectful, but many were hateful and cruel. And the basis for the discrimination plainly was their religious identity and message. In the words of more than one poster to this list over the past day, these two were suffering an injury to their dignity, the pain of rejection, and the shame of stigma based on their identity. Despite the undeniable fact that these two were the victims of discriminatory treatment and that they plainly felt the sting of that discrimination, I am guessing that all or most on this list will agree with me that it would be inappropriate to use the power of government to prevent such unfortunate behavior in the future or to pass a law that would compel those who pass by to treat evangelists with respect. And I think that choice to refrain from use of government and law is correct for at least two reasons. First, a legally binding directive to treat evangelists – or for that matter others who present a message – with respect, or instead a government regulation that induces such respect at the cost of some type of sanction or withheld benefit, would be difficult to separate from an improper government endorsement of the message at issue. At the very least, legal action would put the heavy thumb of the government on the side of refraining from expressing opposition or indifference to a value-laden message. But, second, it simply is not the proper role of government to enforce standards of courtesy or to wield legal power (as contrasted with appropriate exercise of persuasion) to shape human interactions. I definitely assert a moral right to be treated with dignity, but I do not have a legal right in a free society to demand that other private citizens extend such courtesy to me or even refrain from being discourteous. (By statute, of course, I do have the right to object to even private discrimination on certain grounds when it denies me the necessary tools for educational and economic opportunity. That’s something on which I’ll comment more later – but this post is already too long. My specific point here is that the real pain of discrimination alone, unaccompanied by something concrete like an economic deprivation, is like other failures in human behavior that are not properly the subject of government and where the imprudent use of law often transgresses the fundamental rights of some while attempting to address the grievances
Re: bigotry and sincere religious belief
I would also add that Greg Sisk’s syllogism only works if (1) you are also willing to allow photographers, florists, caterers, bakers, etc. to refuse to work at mixed-race weddings, or (2) you conclude that refusal to participate in same-sex wedding ceremonies is somehow more worthy of protection than refusal to participate in mixed-race weddings. As to the former, we as a society (or so I had thought) have concluded that we are unwilling to tolerate that type of discrimination, whatever its motivation. As to the latter, I still haven’t seen a principled basis for saying that sexual-orientation-based discrimination is somehow more benign than race-based discrimination (be it in the context of marriage, marriage ceremonies, or otherwise). Perhaps this debate is hopelessly circular: lots of people – including lots of smart people – still oppose same-sex marriage, and smart people who oppose same-sex marriage will naturally come up with ways to treat their opposition to same-sex marriage as less problematic than other types of discrimination that have been more widely discredited. But that doesn’t change what otherwise appears to be purely invidious discrimination. On Feb 27, 2014, at 8:40 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: Greg Sisk's post re: how to think about the wedding photographer is just the compelled speech argument one more time. In the case of a photographer, a First A claim of compelled speech is plausible, though not entirely persuasive. In the case of a baker, florist, wine vendor, or caterer, the argument that their providing service to a same sex wedding involves compelling them to speak about the moral/religious bona fides of the ceremony is not even plausible. But there is a deeper issue lurking in Greg's post. If the photographer has a good compelled speech claim, it is entirely independent of religion. She can have any reason, or no reason at all, to refuse to speak. She can have religious objections, homophobic reactions, or aesthetic concerns about taking pictures of two brides or two grooms. Her reasons are totally irrelevant. This is the precise lesson of Minersville v. Gobitis (no free exercise exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. Barnette (no one can be compelled to salute the American flag). And if reasons are irrelevant, because this is a compelled speech problem, then it extends to all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc. The photographer cannot be conscripted by civil rights laws into taking and displaying photos against her will. Maybe this is a good result; I have my doubts. But it is NOT a religious exemption, and it does NOT require any parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under Greg's approach, the problem raised by RFRA's, re: separating religious sincerity from phobic bigotry, remains entirely unresolved. On Thu, Feb 27, 2014 at 7:43 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Although Steve’s post could be dismissed as filled with overstatements, unfair characterizations, demonization of dissenting voices, and setting up strawmen to easily knock down, let me take his points at face value and use them as a starting point for a conversation that might lower the tension and find some common ground. Much of the back-and-forth accusations that fly past each other without true engagement may be traced to (1) the over-use or the mis-use of the term “discriminate” and (2) at least the appearance of overreaching in requesting accommodation. The central point of dispute here really comes down to situations that involve a personal decision not to be forced to participate in a celebration or an affirmance of something with which one does not agree. Yes, other situations may arise and deserve consideration on their own merits. But let’s set those to one side for now. If we were to narrow the battlefield down to the point of coerced personal participation and identification with a position or message and preserving freedom of association in a narrow category, perhaps we might find a place where the heat could be lowered, where the accusation of discrimination is strained, and accommodations less grudgingly accepted. Steve states that “general societal laws . . . would require [religious believers] to ignore the sexual orientation of students, employees, customers, etc.” Now that is not an accurate description of new anti-discrimination laws, which go much further in effect. But suppose that his description were correct. Indeed, perhaps it should be correct and anti-discrimination laws should be recalibrated to fit Steve’s description. If we did so, we might be able to establish a common ground in which anti-discrimination laws would be harder to challenge on religious grounds and easier to defend as not imposing a governmental orthodoxy
Re: Statistics on believers and same-sex marriage
Replace “same-sex marriage” with “interracial marriage” and I can’t imagine you’d be making the same arguments – or suggest that business-owning opponents of interracial marriage were being “suffocated by an orthodox majority that is impatient or disdainful of accommodation.” On Feb 26, 2014, at 3:24 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Don’t the statistics that Marci cites make the argument for robust religious freedom protection more rather than less compelling for those now or future religious minorities who do not wish to be forced to participate in or contribute business services to same-sex marriage ceremonies? Haven’t we transgressed rather far on to both freedom of religion and freedom of speech if the majority’s anti-discrimination laws can be used to require a person in the minority, at the price of losing a business license and surrendering her livelihood, to participate in a ceremony that offends his or her religious views? The events photographer acts not a journalist but a member of the team and thus must participate in a ceremony, whether it be a wedding, military banquet, or religious occasion. The baker who is asked not merely to sell a generic cake but to create a message by designing a special cake is necessarily becoming a part of the program and being asked to communicate a message. The proprietor of a bed-and-breakfast who is asked to dedicate a portion of her property to host a ceremony or program of any kind, whether a same-sex marriage or a religious ordination ceremony or a bachelor party, is being asked to join in the celebration and cannot holds it at arm’s length. Those whose religious views comfortably track the majority opinions on matters need not fear oppression, either intentionally or inadvertently. It was not surprising, for example, in my empirical studies of religious liberty cases that Episcopalians bring fewer claims for accommodation than Muslims. The primary purpose of religious liberty is to protect the religious minority from being intentionally suppressed by a hostile majority or inadvertently suffocated by an orthodox majority that is impatient or disdainful of accommodation and leaves no meaningful room for alternative views or lifestyles. We should expect better of a society that calls itself free or that claims to genuinely value diversity. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edumailto:gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, February 26, 2014 1:52 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Statistics on believers and same-sex marriage I thought list participants would find the statistics below interesting. This is what I meant when I said that opposition to same-sex marriage among believers is declining. It is even more stark when one asks only the younger generation. http://www.huffingtonpost.com/2014/02/26/millennials-gay-unaffiliated-church-religion_n_4856094.html?ncid=tweetlnkushpmg0055 . ~WRD000.jpg ___ 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: Statistics on believers and same-sex marriage
I appreciate your consistency – and your acknowledgement that the logic underlying the Arizona legislation would enable a return to racial discrimination and segregation (at least when motivated by religious beliefs). On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Yes, I do support religious liberty claims for religious minorities, when a substantial burden on exercise of faith is shown and a compelling government interest is missing. I do not limit my support for religious liberty to those exercises of religion that correspond to my own views, for that is not freedom at all. I’ve consistently defended claims by multiple religious minorities, from Muslims to American Indian groups and on to Orthodox Jews, as well as evangelical Christians and Catholics. Nor is my plea to accommodate the small business owner limited to a particular type of objection. An events photographer should be free, as a matter of both free exercise of religion and freedom of speech, to decline to photograph events that communicate a message with which she disagrees, whether that be a military deployment send-off event (because she is a pacifist) or a same-sex marriage ceremony (because she adheres to traditional religious perspectives on sexual morality) or, for that matter, a Catholic First Communion (because she regards the Catholic Church as oppressive). Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edumailto:gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper Sent: Wednesday, February 26, 2014 2:30 PM To: Law Religion issues for Law Academics Subject: Re: Statistics on believers and same-sex marriage Replace “same-sex marriage” with “interracial marriage” and I can’t imagine you’d be making the same arguments – or suggest that business-owning opponents of interracial marriage were being “suffocated by an orthodox majority that is impatient or disdainful of accommodation.” On Feb 26, 2014, at 3:24 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Don’t the statistics that Marci cites make the argument for robust religious freedom protection more rather than less compelling for those now or future religious minorities who do not wish to be forced to participate in or contribute business services to same-sex marriage ceremonies? Haven’t we transgressed rather far on to both freedom of religion and freedom of speech if the majority’s anti-discrimination laws can be used to require a person in the minority, at the price of losing a business license and surrendering her livelihood, to participate in a ceremony that offends his or her religious views? The events photographer acts not a journalist but a member of the team and thus must participate in a ceremony, whether it be a wedding, military banquet, or religious occasion. The baker who is asked not merely to sell a generic cake but to create a message by designing a special cake is necessarily becoming a part of the program and being asked to communicate a message. The proprietor of a bed-and-breakfast who is asked to dedicate a portion of her property to host a ceremony or program of any kind, whether a same-sex marriage or a religious ordination ceremony or a bachelor party, is being asked to join in the celebration and cannot holds it at arm’s length. Those whose religious views comfortably track the majority opinions on matters need not fear oppression, either intentionally or inadvertently. It was not surprising, for example, in my empirical studies of religious liberty cases that Episcopalians bring fewer claims for accommodation than Muslims. The primary purpose of religious liberty is to protect the religious minority from being intentionally suppressed by a hostile majority or inadvertently suffocated by an orthodox majority that is impatient or disdainful of accommodation and leaves no meaningful room for alternative views or lifestyles. We should expect better of a society that calls itself free or that claims to genuinely value diversity. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edumailto:gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto
Re: Statistics on believers and same-sex marriage
I’m glad that you agree that avoiding racial segregation is a compelling interest (although that concession seems inconsistent with your prior post, in which you claim that we as a society can’t really know much of anything). But I still haven’t seen any good explanation for why discrimination on the basis of sexual orientation (or objection to same-sex ceremonies) is materially less harmful than discrimination on the basis of race (or objection to interracial ceremonies). There are more religious objections to the latter than to the former – but there used to be a great many religious objections to even the former. At the end of the day, an argument that same-sex discrimination is “better” than race discrimination can’t just be asserted, and it can’t be bootstrapped on the basis of vocal religious objections to the same-sex relationships or ceremonies. On Feb 26, 2014, at 4:17 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: No such logic exists. Your inference omits my express reference to the requirement of a substantial burden and the omission of a compelling public interest. A return to racial segregation and inability to receive services on the basis of race would easily qualify as a compelling public interest. The narrow question presented in these cases is whether a religious minority may decline to participate in a ceremonial message with which they disagree, especially when alternative venues and services are readily available and thus no actual burden is imposed on anyone. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edumailto:gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper Sent: Wednesday, February 26, 2014 2:55 PM To: Law Religion issues for Law Academics Subject: Re: Statistics on believers and same-sex marriage I appreciate your consistency – and your acknowledgement that the logic underlying the Arizona legislation would enable a return to racial discrimination and segregation (at least when motivated by religious beliefs). On Feb 26, 2014, at 3:40 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Yes, I do support religious liberty claims for religious minorities, when a substantial burden on exercise of faith is shown and a compelling government interest is missing. I do not limit my support for religious liberty to those exercises of religion that correspond to my own views, for that is not freedom at all. I’ve consistently defended claims by multiple religious minorities, from Muslims to American Indian groups and on to Orthodox Jews, as well as evangelical Christians and Catholics. Nor is my plea to accommodate the small business owner limited to a particular type of objection. An events photographer should be free, as a matter of both free exercise of religion and freedom of speech, to decline to photograph events that communicate a message with which she disagrees, whether that be a military deployment send-off event (because she is a pacifist) or a same-sex marriage ceremony (because she adheres to traditional religious perspectives on sexual morality) or, for that matter, a Catholic First Communion (because she regards the Catholic Church as oppressive). Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edumailto:gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.htmlhttp://personal2.stthomas.edu/GCSISK/sisk.html Publications: http://ssrn.com/author=44545 ___ 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: recommended Hobby Lobby posts
I agree with Chip about the political realities of a public option. Even if that option were politically viable, I don’t see how the public option can be considered a less restrictive alternative in cases dealing with exemptions from regulations. Employers have previously brought free exercise challenges to things like federal minimum wage laws and equal pay laws. Those challenges have been rejected. But if an employer has a religious objection to paying the minimum wage, the government could step in and pay a salary supplement. If an employer has a religious objection to paying women as much as men, the government could step in and make up the difference directly. United States v. Lee would have also come out differently – the government could have chipped in the missing social security payments there, too. And so on and so on: virtually every regulation governing health, safety, wage, working conditions – any regulation that requires a private party to do something – could be rewritten so that the government performs the action itself. If the “public option” is considered to be a less restrictive alternative, then we’re in a world of state-run everything. On Feb 20, 2014, at 7:01 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Two quick points before I have to prepare for class: We are on a slippery slope when we refer to someone as seeking to have “the government[] … authorize [it] to act on religious beliefs in ways that harm others,” when what is at stake is whether the government can force that person to do something for others in violation of religious conscience. This comes very close to saying that the government authorizes whatever it does not prohibit. Political considerations should play no role when we ask whether the government has another way to advance its interests. Regardless of whether the people or their representatives would choose to use that other way, it must be treated as available for purposes of constitutional analysis. The choice not to use it may show that the government is not terribly committed to advancing the particular interest that is at stake, but in any event a refusal of the government (a government by the people, right?) to utilize a means of furthering its interests is not a reason for limiting the freedoms of those who do not want to be used to advance that interest. The costs of using the alternative may be relevant, but the refusal of the people to authorize its use is not. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 20, 2014 3:44 PM To: Law Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas
Re: Notre Dame-- where's the complicit participation? Sincerity
Notre Dame's lawyer mentioned these remarks briefly during last week's oral argument, but it was not entirely clear to me whether he (the lawyer) was citing them for (1) the general point that Notre Dame has an obligation to adhere to Catholic doctrine, or (2) the more specific point that Notre Dame must resist the contraception accommodation. On Feb 16, 2014, at 7:22 PM, Friedman, Howard M. howard.fried...@utoledo.edumailto:howard.fried...@utoledo.edu wrote: Does anyone know whether the trustees of Notre Dame perhaps interpreted Pope Benedict's remarks in his meeting with them in Rome on Jan. 31 as being a reference to Notre Dame's position on the contraceptive mandate. The Pope said: This commitment to “missionary discipleship” ought to be reflected in a special way in Catholic universities (cf. Evangelii Gaudium, 132-134), which by their very nature are committed to demonstrating the harmony of faith and reason and the relevance of the Christian message for a full and authentically human life. Essential in this regard is the uncompromising witness of Catholic universities to the Church’s moral teaching, and the defense of her freedom, precisely in and through her institutions, to uphold that teaching as authoritatively proclaimed by the magisterium of her pastors. It is my hope that the University of Notre Dame will continue to offer unambiguous testimony to this aspect of its foundational Catholic identity, especially in the face of efforts, from whatever quarter, to dilute that indispensable witness. Full text of the Pope's remarks are at http://www.news.va/en/news/vatican-the-pope-to-the-university-of-notre-dame Howard Friedman From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Penalver, Eduardo [penal...@uchicago.edumailto:penal...@uchicago.edu] Sent: Sunday, February 16, 2014 6:48 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Notre Dame-- where's the complicit participation? Sincerity There is a huge difference between the Church's teaching on contraception (which is clear), and its views on the permissibility of participating in an insurance scheme that covers contraception for employees who would likely already purchase it using their paychecks, let alone the permissibility of signing a form the consequence of which is that some contractual third party provides contraceptive coverage to said employees. The sincerity of the recently asserted views on these later two questions is far from clear to my mind. Again, though, the degree to which a court should probe this issue strikes me as a different and difficult question. But it seems important to acknowledge the novelty of the position some Catholic institutions have adopted in this litigation. On Feb 16, 2014, at 3:43 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: I appreciate Marci's support on my other point, but I'm afraid I don't agree that the views of American Catholics writ large is especially relevant. It's no secret that most Catholics, including ND students and faculty, disagree with ND's view, and with the Church's, on the morality of contraception and premarital sex. That's why this is a losing battle for ND in the long run. But I think there can be little doubt but that, as an institution, Notre Dame believes (and at least nominally instructs its students) that such things are indeed sinful. On Sun, Feb 16, 2014 at 4:20 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: There is a doubt however about what American Catholics believe. They overwhelmingly reject the church teaching against contraception. They don't think they are sinners as Mark suggested. They reject it. Every poll supports that as does the fact that it is rare to find a Catholic family w 10-20 children in the US. The teaching is one thing: the belief is another in the US. This is not an idle observation. ND has inserted itself into the spotlight by asserting beliefs that most Americans know Catholics reject-in theory and in practice. On Marty's point--the fact that the government gives for-profits a pass on abortion does not show they have a conscience. It shows religious abortion opponents had political clout.Your reasoning strikes me as backward. I think Marty and the SG are on the stronger ground here If the Court finds they have such rights, the slippery slope is perpendicular to the ground. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 16, 2014, at 3:45 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: No doubt the Board and senior administration speaks for Notre Dame. But on faith and morals, they may (and may be
Re: Notre Dame-- where's the complicit participation? Sincerity
Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to the enactment of the women’s health provisions in the first place. Let me try to address a few of the most important points: 1. The distinction between “medically-indicated” (non-contraceptive) uses of contraception and “non-medical” uses of contraception is spurious. Put aside for a moment the importance of allowing women to control their own bodies, stay in school, rise in the workplace, etc. Contraception qua contraception is still critical for women’s health (planned pregnancies lead to better prenatal care, and some women have health conditions that make pregnancy dangerous) and for the health of the children (planned pregnancies lead to better prenatal care, and properly spaced pregnancies are better for the children). 2. Even if the medical/non-medical distinction were real, imagine having to go to your HR department for permission to receive coverage for “medically-indicated” uses of contraception. It’s a trifle infantalizing. 3. There is also no such thing as “ordinary contraception” (which Professor Sisk posits can be purchased for $10 a month, leaving medical coverage unnecessary). I’m assuming that Professor Sisk uses that term to refer to the birth-control pill. Other forms of contraception (such as IUD) are far more effective and also much more expensive; their high upfront cost leads many women to choose cheaper and less effective methods. Even if IUD were somehow considered an aspirational luxury, oral contraception isn’t appropriate for some women, for instance due to side effects. So we can’t just send women to CVS sans insurance. 4. Even if oral contraception were the only game in town, $120 a year is nothing to sneeze at, especially for low-wage workers – the very people who already face significant financial barriers to obtaining contraception. 5. Many of the same people who have opposed the contraception-coverage regulations most strenuously would be among the loudest voices opposing a government program to fund/subsidize contraception for women whose employers refused to include it in their health policies. The ACA, which attempted to keep employer-based coverage largely in place, has already been derided as “socialized medicine.” Even if a separate program were politically viable, forcing women with objecting-employers to sign up for a separate, government-run program of contraception coverage is a needless extra burden, is stigmatizing, and makes insurance coverage less seamless for those women. 6. Let’s put aside for a moment that the “abortifacient” label is almost entirely contradicted by modern science (even if you accept that interference with implantation constitutes an abortion). Since opponents of the contraception regs regularly describe the regs as the “abortion pill mandate,” are those opponents – the very organizations representing most of the plaintiffs in these cases – going to turn around and support a government program that uses taxpayer dollars to provide women with “abortion pills”? Don’t bet on it. Implicit in Professor Sisk’s post is that contraception is junior-varsity healthcare, and that it’s okay if there are gaps in contraception coverage or if women are left to fend for themselves to get contraception. That is a dubious policy position, and it was wisely rejected by the political branches. However one comes down on the religious objections that are now being asserted in court, Professor Sisk’s view – that government officials are “gleefully impose[ing] their views on opponents by needless overreach” – makes sense only if you assume that certain people’s religious views are the only views that matter, no matter how much that burden third parties. On Feb 17, 2014, at 6:38 PM, Sisk, Gregory C. gcs...@stthomas.edumailto:gcs...@stthomas.edu wrote: Derek Gaubatz’s post concludes with a point that is too often lost in the sound and fury about the imposition of the abortificient/contraception mandate on employers of faith – which is that the mandate is dubious public policy (even on its own terms) and this dispute could have been avoided but for political considerations. This is another sad episode in modern politics in which those with power – of either party and both sides of the spectrum – gleefully impose their views on opponents by needless overreach when they get a political victory. The last thing that the Catholic bishops or that Notre Dame wanted was this legal fight. The Administration imposed the mandate so broadly to score ideological points with its pro-choice constituency, adopting a policy with a weak connection to significant public policy or health care needs, given the wide and inexpensive availability of contraception. Regardless of the strength of the RFRA and constitutional claims by various employers for exemption from the abortifacient/contraception mandate, the lesson that should be taken
Re: Notre Dame-- where's the complicit participation? Sincerity
As I explained in my previous post, the supposed alternatives to the current regulations aren't as effective, and in any event are unlikely to be politically viable due to opposition by many of the same people who oppose the current system. These just a modicum of effort suppositions appear to be based on misunderstandings of all sorts of things — and would subject the affected women to the very costs and burdens that the women's health provisions attempted to address. Virtually all Americans and virtually all American Catholics support (or do not oppose) the use of contraception. Some oppose it on religious grounds, and if we can accommodate them without harming or burdening others, then we should probably do so. But here there are harms and burdens to third parties. We wouldn't accept a religious challenge to the equal pay laws, even though the government could make make up the difference by paying affected women a salary supplement; that option would be burdensome and demeaning to women, even though it would be theoretically possible and even if some of the affected women could afford to feed their families without it. I don't see why we should burden the affected women in these cases just because the particular item at issue involves sex and procreation. On Feb 17, 2014, at 8:40 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: Respectfully, I think you missed the point of Professor Sisk's argument (and mine in the preceding post). The argument is not that religious views are the only ones that matter and that they must triumph over women's health concerns. Instead, the argument was that with just a modicum of effort, a system could very easily have been devised that would have accommodated both health policy concerns and religious liberty interests. (Yes, there might be some government financial cost to such a solution, just as there are to some other accomodationist solutions like providing kosher diets for prisoners or armed forces personn, but that cost has a good return of maintaining harmony among a plural society and respecting the dignity of the individual believer). I've yet to hear a good argument as to why that wouldn be a better outcome. When the government knows that a large number of citizens have strong religious objections to a particular policy, why isn't it better for the government to recognize the religious nature of this portion of its citizenry and achieve its desired policy ends in a way that doesn't subject these citizens to crippling fines for seeking to live their lives in accord with their faith? Grace and peace to you, Derek From: Greg Lipper Sent: Monday, February 17, 2014 6:35 PM To: Law Religion issues for Law Academics Reply To: Greg Lipper Subject: Re: Notre Dame-- where's the complicit participation? Sincerity Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to the enactment of the women’s health provisions in the first place. Let me try to address a few of the most important points: 1. The distinction between “medically-indicated” (non-contraceptive) uses of contraception and “non-medical” uses of contraception is spurious. Put aside for a moment the importance of allowing women to control their own bodies, stay in school, rise in the workplace, etc. Contraception qua contraception is still critical for women’s health (planned pregnancies lead to better prenatal care, and some women have health conditions that make pregnancy dangerous) and for the health of the children (planned pregnancies lead to better prenatal care, and properly spaced pregnancies are better for the children). 2. Even if the medical/non-medical distinction were real, imagine having to go to your HR department for permission to receive coverage for “medically-indicated” uses of contraception. It’s a trifle infantalizing. 3. There is also no such thing as “ordinary contraception” (which Professor Sisk posits can be purchased for $10 a month, leaving medical coverage unnecessary). I’m assuming that Professor Sisk uses that term to refer to the birth-control pill. Other forms of contraception (such as IUD) are far more effective and also much more expensive; their high upfront cost leads many women to choose cheaper and less effective methods. Even if IUD were somehow considered an aspirational luxury, oral contraception isn’t appropriate for some women, for instance due to side effects. So we can’t just send women to CVS sans insurance. 4. Even if oral contraception were the only game in town, $120 a year is nothing to sneeze at, especially for low-wage workers – the very people who already face significant financial barriers to obtaining contraception. 5. Many of the same people who have opposed the contraception-coverage regulations most strenuously would be among the loudest voices opposing a government program to fund/subsidize contraception for women whose employers refused
final thoughts on the importance/availability of contraception
One closing note about the exchange of the last few hours: Many people, including and especially many males, are unlikely to be aware of all of the relevant factors affecting the cost and availability of contraception. As a result, it is unfortunate that (other than in the Notre Dame case), the women directly affected by these lawsuits aren’t before the courts. Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 ___ 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: final thoughts on the importance/availability of contraception
I’ll address Mark’s points below. On Feb 18, 2014, at 12:21 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I wonder if others (especially other males) have the same negative reaction I do to the terminology Greg (Lipper, not Sisk) uses here. Men are described as males. Women are described as women. This seems to be common usage in some circles. I actually have no idea why one term or another would be considered to be more or less good/bad, but I’m happy to use the terms “men” and “females” if that is more acceptable to you… With regard to the earlier point that some people who don't want to be forced to provide contraceptives/abortifacients/sterilizations also would oppose having the government provide them, which somehow undercuts their religious liberty claim: No, it undercuts the claim that there an “easy” alternative that would have avoided the need for the current regulations. And it suggests that these cases are about preventing women from using contraception – however the obtain it – and not about complicity in that decision. I suppose most conscientious pacifists would oppose their government waging war. They don't want to engage in it personally, and we honor that, without complaining that they also use the political process to oppose war. If they lose in the political arena, we make them pay taxes even though the taxes will be used for the military, and for the most part they are willing to pay the taxes. But we don't make them fight. Putting aside my surprise that (many decades after the 1950s) we are comparing contraception to war, this analogy doesn’t quite work. The proper analogy would be (a) someone objecting to fighting in the war, and saying that instead, the government can send a drone, and then (b) opposing legislation that would enable the government to pay for drones. One would rightly conclude from this behavior that the objector didn’t want there to be a war (whether or not they were involved in it), just as one would conclude here that the plaintiffs in these cases don’t want women to use contraception (whether or not they are involved in it). We don’t make the objectors fight because we can still fight the war without them and we don’t have to materially change the battle plan. But if we couldn’t – if the war effort would suffer without the objectors, and if their absence would threaten the lives of other troops – I have no doubt that we would make them fight. (In all events, we easily dismiss an objector’s argument – akin to the argument advanced by Notre Dame and other nonprofits – that he was substantially burdened by the mere act of objecting because his objection paves the way for someone to be drafted in his place). If, after the political processes play themselves out, Congress requires us all to be taxed to provide contraceptives/etc., then the objectors here will pay whatever taxes they must pay (and we wouldn't give them an exemption). By this logic, the cases that rejected free exercise challenges to the minimum wage and equal pay laws were wrongly decided, because the government could have raised taxes and made up the pay differences itself. We would also need a government mental-health insurance program, a government blood transfusion program, and a government gelatin-covered pill program, because other employers will be owned by people with religious objections to offering coverage for these forms of medical care, too. Of course, at some point a government that funded large numbers of elective abortions might be seen by some people as having forfeited its legitimacy. But that's a question for another day. I thought that we were talking about contraception, not abortion. Are you saying that they are the same thing? That a government seeking to ensure access to contraception has forfeited its legitimacy? All I can say is – I appreciate your candor. Greg Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Feb 17, 2014, at 6:23 PM, Greg Lipper lip...@au.org wrote: One closing note about the exchange of the last few hours: Many people, including and especially many males, are unlikely to be aware of all of the relevant factors affecting the cost and availability of contraception. As a result, it is unfortunate that (other than in the Notre Dame case), the women directly affected by these lawsuits aren’t before the courts. Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 ___ 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
Re: final thoughts on the importance/availability of contraception
Notre Dame's lawyer also said his client would object even to sending a letter (it's own letter, not the HHS form) to the government, if the govt would then require the third party insurance company to provide coverage to ND employees/students. The argument about the particular HHS form appears to be a red herring—ND's objection is to the govt arranging for contraception coverage after ND opts out. So, in the analogy: you flip a switch, which defuses the bomb in my office. The govt then arranges for someone else to blow it up. (Now that I'm sufficiently spooked, I'm going to try and get some sleep…) On Feb 18, 2014, at 2:08 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I wonder if there's any use in trying to get agreement on what Notre Dame's (and Little Sisters') argument is? Greg Lipper characterizes it this way, as do many others: In all events, we easily dismiss an objector’s argument – akin to the argument advanced by Notre Dame and other nonprofits – that he was substantially burdened by the mere act of objecting because his objection paves the way for someone to be drafted in his place. But although Judge Posner did his damndest to prevent Notre Dame's lawyer from explaining his client's position, I gather that is not Notre Dame's argument. If I understand it, Notre Dame's argument is that it is substantially burdened by submitting the government's form because that form -- unlike, say, a letter addressed to the Secretary of HHS or a complaint in a civil action or a newspaper op-ed -- affirmatively authorizes an insurance administrator to provide contraception. If that's difficult to understand, here's an analogy of my own invention: Do I object to flipping a light switch on the wall? It depends on what the switch is attached to. If all it does it turn on a light bulb on the ceiling, I have no objection. But if it also closes a circuit that sets off a bomb at Greg Lipper's office, then I object. The government argues that its form just turns on a light bulb. Notre Dame and the Little Sisters say it also sets off a bomb. I don't know if that argument is factually true or false, but I think that's the argument. Does anyone think that's not actually what Notre Dame and Little Sisters are arguing? Then here's the harder part: if you tell me that flipping the light switch will just turn on a light bulb on the ceiling, but that if and only if I flip the switch, some other guy will set off the bomb, well, then, I still won't flip the switch. Am I just being irrational? Art Spitzer not speaking for my employer On Tue, Feb 18, 2014 at 1:02 AM, Greg Lipper lip...@au.orgmailto:lip...@au.org wrote: I’ll address Mark’s points below. On Feb 18, 2014, at 12:21 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: I wonder if others (especially other males) have the same negative reaction I do to the terminology Greg (Lipper, not Sisk) uses here. Men are described as males. Women are described as women. This seems to be common usage in some circles. I actually have no idea why one term or another would be considered to be more or less good/bad, but I’m happy to use the terms “men” and “females” if that is more acceptable to you… With regard to the earlier point that some people who don't want to be forced to provide contraceptives/abortifacients/sterilizations also would oppose having the government provide them, which somehow undercuts their religious liberty claim: No, it undercuts the claim that there an “easy” alternative that would have avoided the need for the current regulations. And it suggests that these cases are about preventing women from using contraception – however the obtain it – and not about complicity in that decision. I suppose most conscientious pacifists would oppose their government waging war. They don't want to engage in it personally, and we honor that, without complaining that they also use the political process to oppose war. If they lose in the political arena, we make them pay taxes even though the taxes will be used for the military, and for the most part they are willing to pay the taxes. But we don't make them fight. Putting aside my surprise that (many decades after the 1950s) we are comparing contraception to war, this analogy doesn’t quite work. The proper analogy would be (a) someone objecting to fighting in the war, and saying that instead, the government can send a drone, and then (b) opposing legislation that would enable the government to pay for drones. One would rightly conclude from this behavior that the objector didn’t want there to be a war (whether or not they were involved in it), just as one would conclude here that the plaintiffs in these cases don’t want women to use contraception (whether or not they are involved in it). We don’t make the objectors fight because we can still fight the war
Re: The nonprofit contraception services cases
with smiling children next to him Jon On 2014-01-06 20:45, Gaubatz, Derek wrote: It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides. Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires. So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity. FROM: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [3] [mailto:religionlaw-boun...@lists.ucla.edu [4]] ON BEHALF OF Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.orgmailto:lip...@au.org [5] wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In _Laskowski v. Spellings_, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” _See _Br. of Def.-Intervenor-Appellee at 7-8, _Laskowski_, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in _American Jewish Congress v. Corporation for National Community Service, _323 F. Supp. 2d 44 (D.D.C. 2004), _rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv_., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, _Am. Jewish Cong._, 2003 WL 25709328_,_at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed
Re: The nonprofit contraception services cases
One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you