Re: Town of Greece and coercion
I always thought that when the judges enter the court one stands out of respect for the judges/court, and then sits down when the judges sit. Jon On 2014-07-07 17:05, Marty Lederman wrote: Thats a different point, I think. I assume youd agree that youd remain standing not only because you think its the right thing to do (out of respect for the institution), but also because there would be a steep price to pay if you were to sit down. So there certainly _is _substantial coercion. Now, I agree with you -- its not coercion _to pray_, or even to feign praying. But for some people, it would be coercion to do something their religion forbids or strongly discourages -- namely, to act as though you are a willing part of the assemblage in whose name a god is being invoked, without objecting when Jesus is described as "our" savior who has "restored" "our" lives. When I am in someone elses church, of course I do not find it objectionable to stand respectfully. But when standing in the Court or city council of our own government? On Mon, Jul 7, 2014 at 4:49 PM, Volokh, Eugene wrote: I do not view standing in respectful silence as participation in a religious ceremony (for much the same reasons Justice Scalia gave in _Lee v. Weisman_). I view it as an acknowledgment of respect for the institution and its practices, not as agreement or participation. In this respect standing during the invocation would be similar to standing when the court enters – or, perhaps more on point, the custom (as I understand it) that citizens of one country should stand while a foreign country’s national anthem is being played, but not sing it: They owe the foreign country no allegiance, and thus need not express such allegiance, but they do owe respect to the occasion of the foreign country’s national anthem being played. I would not echo the invocation, though, just as I don’t say the words “under God” when the Pledge of Allegiance is being said. And, as I mentioned before, if I were a yarmulke-wearing Jew (which I’m not), I wouldn’t feel much concern about wearing religious garb before a court that is composed entirely of Christians (not the U.S. Supreme Court today, of course), even when by doing so I am constantly conveying the message, “I am not a Christian.” Eugene FROM: religionlaw-boun...@lists.ucla.edu [16] [mailto:religionlaw-boun...@lists.ucla.edu [17]] ON BEHALF OF Marty Lederman SENT: Monday, July 07, 2014 1:41 PM TO: Law & Religion issues for Law Academics SUBJECT: Town of Greece and coercion Eugene: if you were at counsel table in the Supreme Court, waiting to argue a case, and were uncomfortable (for religious reasons) standing in respectful silence while Pamela Talkin intoned "God save the United States and this Honorable Court," would you dare stay seated, even though theres no historical evidence that the Justices would hold it against you or your client? In case your answer would depend on the idea that no one ought to be uncomfortable standing while the Marshal asks for Gods salvation on our behalf in, imagine the hypo were changed slightly to fit more closely the situation in the time-honored way, then lets change the hypo slightly, to bring it more in line with what occurs in the Town of Greece, e.g., the Marshal decreeing: "In the name of Jesus Christ, our savior, please save the U.S. and this Honorable Court," or "We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side. Please save the United State and this Honorable Court." Would you sit down? I doubt I would, if I were just about to petition the Court. I dont mean to suggest that the Supreme Court hypo settles the Greece case. I use it only to demonstrate what appears to me to be an uncontroversial point, which is that non-Christians in Greece are obviously coerced to, at a minimum, stand in respectful silence while someone prays on their collective behalf to a God that they do not believe in. 14, at 2:50 PM, Alan Brownstein wrote: I appreciate your prompt response, Eugene. Part of our disagreement clearly relates to our understanding of social reality and I don’t know that there is much that can be usefully discussed in that regard. The passage you quote and other language in the majority’s opinion describe a world that is so different from the one I experience that it is hard for me to see how this chasm can be crossed. With regard to your argument that citizens may feel worried about alienating board members or any government official who exercises discretionary power over them in all kinds of pr
Re: On a different strand of the seamless web
recognizing that the corporate entity itself has dignitary rights. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [1] [mailto:religionlaw-boun...@lists.ucla.edu [2]] On Behalf Of mallamud Sent: Monday, July 07, 2014 11:23 AM To: Law & Religion issues for Law Academics Subject: RE: On a different strand of the seamless web Lots of advocacy groups are organized as corporations. It is a very common means of collecting money and engaging is supporting good causes. The fact that it is a corporation should not undermine the idea that a lot of well-meaning people have banded together to do something good. I do not see that it diminishes their sense of doing good things because we use the fiction that the corporation is doing them. Similarly, though I disagree with the decision in Hobby Lobby for many reasons that have been stated on this list, it is not because Alito uses the fiction of the corporation to uphold what the Court decides are the rights of the Greens and the Hahns. To me, to suggest that the decision gives corporations dignitary rights, which admittedly they do not have gets off the point. To me a big obstacle to tolerance arises when we think of rights as dignitary rights so that the failure to recognize becomes tantamount to failing to respect someones personhood. Tolerance will be scarce if we all start to think that the presence of a religious symbol that is not ours diminishes our dignity, and so I think we should stay well clear of the concept of "dignitary rights." Jon On 2014-07-07 12:55, Alan Brownstein wrote: > I agree with most of what Marty says here. Commercial corporations do > not have dignitary rights such as the right to exercise religion. > Human persons have these rights and one can argue as Alito often but > not always does that they should not be held to have waived those > rights because they elect to do business in a corporate form. > Alito’s opinion is strongest when he focuses on real people. > > But the majority also holds that commercial corporations are persons > for RFRA purposes. I do not think it was necessary to reach that > conclusion to protect the Greens and Hahns in this case. Alito > suggests that this idea of corporate personhood is a fiction, but it > is more than that. It is a caricature of human dignity to describe a > commercial corporation as having religious exercise rights. I think > that is part of what is provoking some of the criticisms directed at > Alito’s opinion. > > Moreover, by holding that corporations are persons for RFRA purposes, > Alito makes it much easier to argue that publicly traded corporations > are persons for RFRA purposes as well as closely held corporations. > > Finally, the issue of commercial corporate dignitary rights arises in > other contexts involving other rights. I think, for example, as did > Chief Justice Rehnquist, that it is absurd to suggest that commercial > corporations have dignitary rights that are offended if they are > compelled as corporate entities to speak – or to be connected in some > modest way with some government mandated message. By talking about > commercial corporate religious exercise rights in Hobby Lobby, the > Court arguably reinforces the idea of corporate dignitary rights in > other circumstances. > > Alan > > FROM: religionlaw-boun...@lists.ucla.edu [3] > [mailto:religionlaw-boun...@lists.ucla.edu [4]] ON BEHALF OF Marty > Lederman > SENT: Monday, July 07, 2014 8:14 AM > TO: Law & Religion issues for Law Academics > SUBJECT: Re: On a different strand of the seamless web > > On this point, I think we may have at least some degree of consensus: > The issue is not corporate v. noncorporate, or for-profit v. > nonprofit; it is, instead -- and has been ever since Prince, a case > involving individuals acting in the commercial sector for religious, > nonprofit reasons -- whether and under what circumstances exemptions > should be afforded in the commercial setting. > > Also, as I have been blogging since the outset of the case, the issue > is not the religious exercise of the commercial enterprise -- its > absurd to say that any religion imposes obligations on Hobby Lobby, > Inc. -- but instead the religious exercise of those who make decisions > on its behalf. I think the Alito opinion is best understood to confirm > this conclusion. To be sure, at a couple of points he refers to > permitting the RFRA suit to be brought by Hobby Lobby itself. But > theres no doubt that its the Greens and the Hahns, in their capacity > as corporate directors, whose religious exercise is at issue: > > -- "Congress did not discriminate in this way AGAINST MEN AND WOMEN > WHO WISH TO RUN THEIR BUSINESSES as for-profit corporations in the > mann
RE: On a different strand of the seamless web
Lots of advocacy groups are organized as corporations. It is a very common means of collecting money and engaging is supporting good causes. The fact that it is a corporation should not undermine the idea that a lot of well-meaning people have banded together to do something good. I do not see that it diminishes their sense of doing good things because we use the fiction that the corporation is doing them. Similarly, though I disagree with the decision in Hobby Lobby for many reasons that have been stated on this list, it is not because Alito uses the fiction of the corporation to uphold what the Court decides are the rights of the Greens and the Hahns. To me, to suggest that the decision gives corporations dignitary rights, which admittedly they do not have gets off the point. To me a big obstacle to tolerance arises when we think of rights as dignitary rights so that the failure to recognize becomes tantamount to failing to respect someone's personhood. Tolerance will be scarce if we all start to think that the presence of a religious symbol that is not ours diminishes our dignity, and so I think we should stay well clear of the concept of "dignitary rights." Jon On 2014-07-07 12:55, Alan Brownstein wrote: I agree with most of what Marty says here. Commercial corporations do not have dignitary rights such as the right to exercise religion. Human persons have these rights and one can argue as Alito often but not always does that they should not be held to have waived those rights because they elect to do business in a corporate form. Alito’s opinion is strongest when he focuses on real people. But the majority also holds that commercial corporations are persons for RFRA purposes. I do not think it was necessary to reach that conclusion to protect the Greens and Hahns in this case. Alito suggests that this idea of corporate personhood is a fiction, but it is more than that. It is a caricature of human dignity to describe a commercial corporation as having religious exercise rights. I think that is part of what is provoking some of the criticisms directed at Alito’s opinion. Moreover, by holding that corporations are persons for RFRA purposes, Alito makes it much easier to argue that publicly traded corporations are persons for RFRA purposes as well as closely held corporations. Finally, the issue of commercial corporate dignitary rights arises in other contexts involving other rights. I think, for example, as did Chief Justice Rehnquist, that it is absurd to suggest that commercial corporations have dignitary rights that are offended if they are compelled as corporate entities to speak – or to be connected in some modest way with some government mandated message. By talking about commercial corporate religious exercise rights in Hobby Lobby, the Court arguably reinforces the idea of corporate dignitary rights in other circumstances. Alan FROM: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Marty Lederman SENT: Monday, July 07, 2014 8:14 AM TO: Law & Religion issues for Law Academics SUBJECT: Re: On a different strand of the seamless web On this point, I think we may have at least some degree of consensus: The issue is not corporate v. noncorporate, or for-profit v. nonprofit; it is, instead -- and has been ever since Prince, a case involving individuals acting in the commercial sector for religious, nonprofit reasons -- whether and under what circumstances exemptions should be afforded in the commercial setting. Also, as I have been blogging since the outset of the case, the issue is not the religious exercise of the commercial enterprise -- it's absurd to say that any religion imposes obligations on Hobby Lobby, Inc. -- but instead the religious exercise of those who make decisions on its behalf. I think the Alito opinion is best understood to confirm this conclusion. To be sure, at a couple of points he refers to permitting the RFRA suit to be brought by Hobby Lobby itself. But there's no doubt that it's the Greens and the Hahns, in their capacity as corporate directors, whose religious exercise is at issue: -- "Congress did not discriminate in this way AGAINST MEN AND WOMEN WHO WISH TO RUN THEIR BUSINESSES as for-profit corporations in the manner required by their religious beliefs." -- "Congress provided protection for PEOPLE LIKE THE HAHNS AND GREENS" -- "the HAHNS AND GREENS have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control . . . ." Ultimately, the Court holds that "protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies." I think this formulation doesn't make sense conceptually -- the corporations don't exercise religion. Therefore
RE: Hobby Lobby Question
ight, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of the Seven Years War, but (we now know) the trigger for the American Revolution. Or is the better analogy to slavery, where compromise was ultimately impossible (for better or worse)? Sandy Sent from my iPhone On Jul 6, 2014, at 4:14 PM, "Scarberry, Mark" wrote: And then we would have massive resistance that would make our largely voluntary tax system unworkable and create civil division at extreme levels. Think, as mentioned at AALS, "peasants" with pitchforks. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: "Levinson, Sanford V" Date:07/06/2014 11:13 AM (GMT-08:00) To: Law & Religion issues for Law Academics Subject: Re: Hobby Lobby Question I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, "mallamud" wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently "compelling interests" to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, "Steven Jamar" [13]> wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer [10]> wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial." The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 [1] Director of Inte
Re: Hobby Lobby Question
Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently "compelling interests" to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, "Steven Jamar" wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial." The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 [1] Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org [2] Howard University School of Law fax: 202-806-8567 [3] http://sdjlaw.org [4] "For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope." Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edu [5] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [6] Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu [8] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [9] 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 [11] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [12] Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read mes
Re: The "less restrictive means" analysis and political feasibility
Eugene, I'm a bit late with this, so I am just replying to you (although I do not mind your posting it if you think its still relvant). Where there are less restrictive alternatives, the law is that the government should use them. If they cannot as a political matter, then I do not think that the government interest is truly compelling. The Court's job: to determine if the least restrictive means were used. If the government does not want to use, or the legislature will not authorize, the least restrictive means, it does not change the fact that the least restrictive means were not used. Jon On 2014-07-01 17:42, Volokh, Eugene wrote: It seems to me that there are likely to be many situations in which a court holds that a law isn’t the “least restrictive means,” but the political coalition backing the law has lost power – whether in the recent past, or just because the law is a very old one – and therefore any less restrictive means would be politically infeasible. I hadn’t thought that this would be an argument against striking down the law. To give an example, in _Sable Communications v. FCC_ the Court struck down a total ban on dial-a-porn, which was ostensibly aimed at protecting children, because there were less restrictive means available (in the form of credit card screening and the like). Let’s say, though, that between the enactment of the law and the decision control of one house of Congress had changed, and the party now in control of that house had no desire to restrict porn any more. (This is a counterfactual, but imagine this happening at the state level, in a state where one party might indeed take a “who cares about porn?” view.) Sandy, do you think that the Court should in that situation say, “Well, we realize that any less restrictive means would be politically infeasible, so we’ll uphold the law because there aren’t any politically feasible less restrictive means”? Or is there some important distinction here? Eugene Sandy Levinson writes: AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. ___ 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: "Divisiveness"
There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like "I think it is wrong for religious reasons" and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create problems if the exemptions become wide enough to make it seem that religious folks have general privileges in society that secular folks do not. Cf. Affirmative action. I noted previously Scalia's citation (in during oral argument) of the overwhelming majority extending the VRA as evidence that the law was not carefully considered. During RFRA's passage and thereafter I focused on conservatives articulating the issue as one in which the Supreme Court disrespected religion, and those on the other side of the spectrum articulated the Smith decision as having disrespected constitutional rights. From discussion about Scalia with lawyers and non-lawyers, I cannot help thinking that a dislike of Scalia contributed to one side's support of RFRA. Jon On 2014-06-09 17:00, Steven Jamar wrote: “nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, June 08, 2014 4:54 PM To: Law & Religion issues for Law Academics Subject: "Divisiveness" I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as "divisive." Government religious speech may be seen as "divisive," because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential "divisiveness" of decisions they dislike on substantive grounds, but don't even notice the div
RE: "Divisiveness"
I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system. Jon On 2014-06-08 22:36, Alan Brownstein wrote: If divisive means that people will be upset by a substantive decision than Eugene is clearly correct. I have always thought the issue was whether a decision was one that provoked political divisions along religious lines in the sense that if government could promote religion (or interfere with religion) religious groups would have an additional incentive to organize and mobilize as religious groups in order to make sure that it was their faith that the government promoted and that it was not their faith that was subject to government interference. Placing a church-state issue beyond the scope of political decision-making by subjecting it to constitutional constraints avoided (or at least mitigated) these kinds of political/religious divisions. There is probably a better term for this concern than divisiveness. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Sunday, June 08, 2014 4:54 PM To: Law & Religion issues for Law Academics Subject: "Divisiveness" I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as "divisive." Government religious speech may be seen as "divisive," because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential "divisiveness" of decisions they dislike on substantive grounds, but don't even notice the divisiveness of decisions they think are sound. After all, if one thinks a decision is sound, it's easy to view those who disagree as just unreasonable, so that their feelings of alienation don't really count (since they deserved to lose, and are now just being sore losers). Of course, Eugene Tom Berg writes: I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being "divisive"--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being "divisive" (undermining "harmony," to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: "Divisiveness"
I am not suggesting that "divisiveness" should be a rule of decision. Rather the purpose of the religion clauses is to allow people with strong, differing views live together in reasonable harmony. Thus in interpreting religious exemptions the Court needs to keep that principle in mind. Perhaps the Hobby Lobby decision itself is not important, but it will set a precedent. As far as I am concerned medical insurance provided by the employer is compensation and the employer should not be able to limit an employee's use of compensation. If the religious view that enabling someone else to get an abortion, or birth control that the employer, but not the medical profession, regards as abortion, then almost any arguably religious based claim must be upheld. That, I suggest, would give people defining their own religious beliefs an exemption to interfere with the rights of others. And a country where religious people, but not others, need not obey the general laws of the land is not the way to help the religious and the non-religious live together in reasonable peace. So what I am talking about is not the consequences of any one decision, but of a general interpretation of religious exemptions. I do realize that Congress has the right to enact federal law with exceptions, but as with conscientious objection, I do not think it is proper to treat non-religious people unequally. I have never seen an argument that the due process clause limits the religion clauses although I have seen equal protection reasoning use in free speech cases. Someone (maybe off-list) suggested that treating for-profit companies like non-profit groups and allowing them to put the cost of coverage on the insurance companies on the theory that there is no significant cost to the companies of covering contraception would solve the problem. But as I understand it, the Little Sisters of the Poor will not certify that they have a religious objection to covering abortion because that certification would facilitate their employees in obtaining such services. Finally, I realize that there are many other problems with other freedoms stemming from mandated health insurance coverage. For example, should employers be allowed to refuse to hire smokers, or people who eat junk food, or who drink the "Big Gulp" at fast food places? There was a case argued before the NY Court of Appeals last week about whether the Board of Health in New York City had the power to prohibit serving sodas in containers larger than a specified size. But I realize this goes beyond the list. To avoid an inconsistency argument in stating that employers should not control the use of compensation by employees based on the employers' religious views I mention this. I know there might be competing considerations in other areas. And I am not taking a position on them now. Jon On 2014-06-08 19:54, Volokh, Eugene wrote: I agree very much with Tom on this point. In most controversies, both sides are acting in ways that could plausibly be labeled as "divisive." Government religious speech may be seen as "divisive," because it may alienate members of other religious groups; but prohibitions on such speech, or litigation seeking such prohibition, may be as divisive or more so. A pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision (or an anti-Hobby-Lobby decision) might be divisive -- and so was the implementation of the mandate without a broad religious exemption, as Tom points out. The Employment Division v. Smith regime can be seen as divisive -- but the RFRA regime, or the Sherbert regime, which makes controversial judicially implemented religious accommodations possible, can apparently be divisive, too. Indeed, in my experience, most people -- I speak generally here, and not with a focus on this list -- can easily see the potential "divisiveness" of decisions they dislike on substantive grounds, but don't even notice the divisiveness of decisions they think are sound. After all, if one thinks a decision is sound, it's easy to view those who disagree as just unreasonable, so that their feelings of alienation don't really count (since they deserved to lose, and are now just being sore losers). Of course, Eugene Tom Berg writes: I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being "divisive"--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being "divisive" (undermining "harmony," to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) ___ To post, send message to R
RE: Hobby Lobby/Ellen Katz
Eugene, I agree that "it would [not] be proper for him to take a different approach because he wants people to "take a more nuanced view of him" or because he wants to "convic[e] people that the Supreme Court deserves respect." Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive. I believe based on arguments Marci makes that RFRA is unconstitutional, but despite her brief, I do not think that that is at issue in Hobby Lobby. Jon On 2014-06-08 12:58, Volokh, Eugene wrote: I'm still not sure I understand. Let's say Justice Scalia thinks -- as seems quite plausible -- that the Free Exercise Clause is best interpreted as not securing religious exemptions. And let's say that he also thinks, as is also quite possible, that (1) there's no constitutional bar to Congress's providing by statute what the Free Exercise Clause does not itself provide, (2) it's not for secular courts to second-guess claimants' sincere claims that the law violates their religious beliefs, based on a judgment that those beliefs are based on too "tenuous" causal connections, and (3) the proposed exemption doesn't interfere with the rights and freedoms of others. I can't really see how it would be proper for him to take a different approach because he wants people to "take a more nuanced view of him" or because he wants to "convic[e] people that the Supreme Court deserves respect." Now of course if there's a sound substantive argument for why, for instance, RFRA is unconstitutional, then by hypothesis Justice Scalia should be persuaded by it. But what would that argument be? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 9:44 AM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again, an overwhelming majority, stemmed from liberals' dislike of Scalia. Clearly not suitable as a decisional factor, but it undermines the statute in my personal opinion.] Jon On 2014-06-08 12:24, Volokh, Eugene wrote: > I appreciate the general concerns raised in Jon Mallamud's post -- but > I just don't see how items 1 to 5 lead to the conclusion in item > 6 > about Hobby Lobby. Could you elaborate, please, why it would not be > "wis[e]" for Justice Scalia to view RFRA as constitutional as to > federal laws, and as justifying Hobby Lobby's claims in this case? > The conclusion that the standard rejected in Smith is an unsound > interpretation of the Free Exercise Clause doesn't obviously mean that > Congress lacks the power to implement such a standard in a statute. > Maybe that is ultimately the correct conclusion, but I think that it > needs some more justification. > >Eugene > > Jon Mallamud writes: > >> 6. I find that the reasons behind Employment Division v. Smith >> (which I have come to believe stated the best rule) apply to the >> evil
RE: Hobby Lobby/Ellen Katz
People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again, an overwhelming majority, stemmed from liberals' dislike of Scalia. Clearly not suitable as a decisional factor, but it undermines the statute in my personal opinion.] Jon On 2014-06-08 12:24, Volokh, Eugene wrote: I appreciate the general concerns raised in Jon Mallamud's post -- but I just don't see how items 1 to 5 lead to the conclusion in item 6 about Hobby Lobby. Could you elaborate, please, why it would not be "wis[e]" for Justice Scalia to view RFRA as constitutional as to federal laws, and as justifying Hobby Lobby's claims in this case? The conclusion that the standard rejected in Smith is an unsound interpretation of the Free Exercise Clause doesn't obviously mean that Congress lacks the power to implement such a standard in a statute. Maybe that is ultimately the correct conclusion, but I think that it needs some more justification. Eugene Jon Mallamud writes: 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result. I was upset when he failed to enforce limits to the Commerce Clause in extending federal law to state authorization of the use of medical marijuana. Perhaps some day I will get to see why he did that and come to appreciate his view as I have his views in Smith. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby/Ellen Katz
Because my concern applies to other areas and this is a religion law list, I understand that my comment (4) needs more explanation. 1. The extreme partisanship in our political system needs ameliorating. Some years ago I wrote that in the confirmation process Senators needed to exercise restraint in the consideration of prospective Justices because to tie them to politically acceptable positions would undercut the preservation of rights, essentially an anti-majoritarian process. 7 St. John's Journal of Legal Commentary 203 (1991). 2. I am much taken with Justice Douglas' idea that it takes 5 to 10 years for a new Justice to develop a good approach to making decisions because a Justice needs to put aside ideas and positions held before joining the Court and seek a perspective based on the Supreme Court's unique role. 3. I was impressed with the Supreme Court's handling of Brown v. Bd.of Ed. when it stressed the need for everyone to defer to the decisions of the Court. See Cooper v. Aaron. Today I find it unhelpful that so many people criticize the Court using the Court as a whipping boy in discussing cases such as Bush v. Gore, Citizens United and Shelby County (re Sec. 5 of the VRA). At some point "confessional" issues need to be put to rest by the Court. Otherwise our society may become unduly fractured by political disagreement. In an appropriate forum I can defend all three decisions. 4. I am concerned that the dissenters in affirmative action and voting rights cases do not see the changes that have taken place and refuse to admit that achieving a society not based on race may require change in the legal stances taken in the 1960s, 70s and 80s. 5. When I defend the actions of the Court to non-lawyers, I would like to argue that the Supreme Court does not decide cases based on personal political predilections, but takes a broader view based on the overall functioning of our political system and their best judgment of the good of the society as a whole. I find this hard to do in the light of many recent decisions. 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result. I was upset when he failed to enforce limits to the Commerce Clause in extending federal law to state authorization of the use of medical marijuana. Perhaps some day I will get to see why he did that and come to appreciate his view as I have his views in Smith. Jon On 2014-06-07 16:40, Volokh, Eugene wrote: Jon Mallamud writes: 4. Hobby Lobby represents to me an important test in how politically motivated the Court is becoming. In Boerne the Court held that in enforcing the fourteenth amendment, the Congress had to stick to the Supreme Court's interpretation of the constitution. In Employment Division v. Smith, Scalia interpreted the constitution for the Court and Congress tried to impose its own interpretation. If Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case, I would be concerned. Of course I am sure one could write a persuasive argument that Congress has full authority over statutes it enacts and Scalia could defer to the statute. I'm not sure why we should be "concerned" "[i]f Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case." Congress has the power to carve out exemptions from federal laws (even if lacks such power to carve out exemptions from state laws, see Boerne). Smith simply holds that the _Free Exercise Clause_ doesn't provide such exemptions - it doesn't preclude statutory exemptions, no? By the way, if we should be concerned by Scalia's possible pro-Hobby-Lobby vote, I take it we should be equally concerned by Stevens' votes in Smith, Boerne, and O Centro, as well as by Ginsburg's votes in Boerne and O Centro (since her vote in Boerne suggests that she would have voted with the majority in Smith), no? Eugene ___ 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/Ellen Katz
Ellen Katz has an interesting article regarding the use of precedent by the Roberts Court with a view to what it might do in Hobby Lobby. It is an informative read and a good background for speculating on what the result might be in that case. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2437958 It does provoke me to make a few comments. 1. I really do not think Citizens United needs to be read as protecting individual rights of corporations. Rather, and I think Scalia said something to this effect, corporations are a way in which people carry on activities and the question becomes whether the people are protected by the first amendment in what they are doing. In Citizens United the corporation was an advocacy corporation. The Supreme Court did consider whether to treat advocacy corporations as protected and distinguish them from for-profit corporations. The Court concluded that such a distinction would be too vague to make free speech rights dependent on it. But we do have a form of church corporation which arguably might be treated differently for religious exemptions (I would not do so because I agree with Marci), but that would mean that a for-profit corporation would not enjoy "freedom of religion." 2. In fact the overwhelming majority of corporations in this country do not have sufficient resources to exercise "undue influence" tending to corruption in the public debate. Many corporations are public interest groups. So the use of "corporation" in the statute was hopelessly over-broad, a no-no in first amendment law. 3. At one time I taught Legal Process and explained the different ways of dealing with precedent. Besides overruling cases courts could limit them to their facts, or re-characterize them, perhaps by pointing out facts that were present in case but not used by the prior court as material facts. When it comes to the Supreme Court, their freedom to refine prior holdings is, and should be, greater than lower courts and it should not surprise lawyers if they do so. Furthermore, regarding using older cases, it is not illegitimate, in my opinion, to focus on an older line of cases where a single more recent decision departed from the older line of cases. 4. Hobby Lobby represents to me an important test in how politically motivated the Court is becoming. In Boerne the Court held that in enforcing the fourteenth amendment, the Congress had to stick to the Supreme Court's interpretation of the constitution. In Employment Division v. Smith, Scalia interpreted the constitution for the Court and Congress tried to impose its own interpretation. If Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case, I would be concerned. Of course I am sure one could write a persuasive argument that Congress has full authority over statutes it enacts and Scalia could defer to the statute. Jon P.S. Thanks to the Con Law Professor Blog for noting Ellen Katz's article. ___ 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: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
Marty's comment below suggests that Employment Division v. Smith sets the right standard. Consider this paragraph of Marty;s: "Assume that a state actor, such as a legislature or a state employer, granted a religious-only exemption to a vaccination requirement. This actually happens quite frequently under state laws. In my view this is an Establishment Clause violation, because of the harm to third parties. The interesting question is who can sue to complain about it. A member of the public or a student at school who may be exposed to unimmunized religious objectors? (Probably standing problems, at least in federal court.) What about a secular objector who complains that the state cannot discriminate against her non-religious reasons for wanting the exemption -- a Texas Monthly-like case, in other words, but without the Free Speech/Free Press overlay? The irony in such a case is that extending the exemption to secular objectors eliminates the Establishment Clause problem -- that's why some legislatures have done it! -- while at the same time further further undermining the underlying health reason for the vaccination requirement. Should the secular objector be able to prevail in that case, relying principally on the harm to third parties that makes the religious exemption unconstitutional . . . even though that harm that will be exacerbated if the exemption if the plaintiff wins and the exemption is extended beyond religion?" One should be free to practice one's religion as long as that practice does not have a reasonable negative impact on others. Preventing people from being a nurse for failure to meet the job requirements does not prevent them from practicing their religion. Just as the first amendment reflects a value of free speech that many of us would like private folks to follow, so the legal implementation of the freedom of religion clauses sets a value that people in their private capacity should follow. Freedom of religion should not authorize people to impact my freedom, health or safety in a substantial way. If a vaccination is determined to be necessary as a substantial requirement for employment, then all employees should be vaccinated or, at least, those employees whose vaccinations fall within the reason for the requirement and I do not see how religious views should afford an exemption. If the requirement only concerns the safety of the individual employee, that is a different case. Jon On 2014-06-07 07:37, Marty Lederman wrote: Well, the opinion is a complete mess, and might not best be read as a constitutional decision at all. It does, however, suggest a lurking interesting question about religious accommodations and vaccinations, albeit one not raised by this case. This is an unemployment compensation case involving a private employer. For the most part, the opinion appears to be a straightforward APA-like arbitrary and capricious decision, not implicating any constitutional decision. The rationale is that the religious accommodation undermined the employers stated health objective for imposing the vaccination requirement, and therefore there was no good reason for insisting upon the vaccination (and thus no legal grounds for firing the plaintiff, thereby entitling her to unemployment compensation). The opinion ends with this holding: The record is uncontroverted that the employer did not produce evidence showing appellants refusal to comply with its flu vaccination policy for purely secular reasons adversely impacted the hospital or otherwise undermined appellants ability to perform her job as a nurse. Now, this is, of course, nuts. I think it might be a function of the fact that the employer did not appear in the case--only the state board of unemployment compensation did. But if, in the underlying unemployment compensation proceedings, the hospital couldnt come up with any evidence of adverse impact of the nurses refusal to be immunized, it needs to hire better lawyers (or administrators). To be sure, the religious exemption _does _undermine the efficacy of the vaccination requirement somewhat. But presumably it doesnt blow it to smithereens, or render it futile -- the patients are still _more likely_ not to contract the flu if most (even if not all) employees are vaccinated. In the midst of all this misbegotten Ad Law stuff, however, the court interjects two constitutional bits: The first is an unadorned sentence suggesting a free speech violation _by the unemployment compensation board. _(The hospital, recall, is a private employer.) The refusal of the board to give benefits to the secular objector, writes the court, "unconstitutionally violated appellants freedom of expression by endorsing the employers religion-based exemption to its flu vaccination policy." Theres no analysis here, and this is, of course, even less coherent or justi
RE: Supreme Court Decides Town of Greece
As far as I am concerned, any prayer before a legislative session
suggests that our representatives need prayer to function, or need to
pretend they need prayer in order to maintain the "respect" of their
constituents. Government is secular and should not function with
prayers; freedom of religion should mean legislators are free to stop by
their favorite place of worship to pray before or after entering the
secular sphere: government. On that basis, I would like to say that
legislative prayer violates the first amendment.
But if legislative prayers are to be upheld, and the dissent does not
say that no prayer is allowed, then the judicial supervision of the
content of the prayers should be minimal. We do not want judicially
approved prayers. Thus, if we are to have prayers, then the majority
decision serves us better than the dissent's position would.
The dissent would open the door to any group wishing to flex its
muscles to get publicity by suing legislative bodies. Under the
majority position, the bar to successful suits is much higher.
I would think that the opposition to legislative prayer would come
from the sincerely religious. As a tolerant, secular person I am
unlikely to be offended by any prayer because it comes from an
intellectual world so different from mine; but one who sincerely
believes in a doctrine, I would think, might be offended by a contrary
doctrine.
Jon
On 2014-05-05 16:35, Conkle, Daniel O. wrote:
The Court says that Marsh is not merely "an exception," but it goes
on
to write an opinion linked specifically to the context at hand, i.e.,
legislative prayer. As I read Kennedy's opinion, the Court is saying
that if history and tradition clearly approve a practice, then there
is no need to invoke any broader or more general test. Conversely,
the
Court might need such a more general test if history and tradition
are
not so clear in the specific setting at hand. In any event, I don't
read the Court to be burying either Lemon or the endorsement test, at
least not explicitly, even though the Court does not apply them here.
It's interesting that even the dissenters accept Marsh as valid even
though they would reach a different result under their
"fact-sensitive" (Breyer's language) approach.
Dan Conkle
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University Maurer School of Law
Bloomington, Indiana 47405
(812) 855-4331
fax (812) 855-0555
e-mail con...@indiana.edu [1]
.
FROM: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Marc Stern
SENT: Monday, May 05, 2014 1:33 PM
TO: Law & Religion issues for Law Academics
SUBJECT: RE: Supreme Court Decides Town of Greece
One thing that stands out as important for Justice Kennedy is the
absence of an intent to prefer the majority faith. .But what of the
effects test,which is still part of the law until Lemon is formally
overruled.(Interesting that the plurality did not even discuss the
vitality of Lemon.) Is that test irrelevant here only because of the
history and tradition of legislative prayer? Or is something else at
work?.
MARC D. STERN
General Counsel
212.891.1480
ste...@ajc.org [2]
LIKE US: Facebook.com/AJCGlobal [3]
FOLLOW US: Twitter.com/AJCGlobal [4]
[5]
AJC Global Forum: May 12-14 [6]
ACCESS Summit: May 11-12 [7]
FROM: religionlaw-boun...@lists.ucla.edu [8]
[mailto:religionlaw-boun...@lists.ucla.edu [9]] ON BEHALF OF Rick
Garnett
SENT: Monday, May 05, 2014 1:24 PM
TO: Law & Religion issues for Law Academics
SUBJECT: RE: Supreme Court Decides Town of Greece
Dear colleagues,
I thought that Prof. Marc DeGirolami (St. John's) made a number of
interesting and helpful observations - which suggest that at least
some matters might have been clarified a bit -- about Justice
Kennedy's opinion in this post ("The Jurisprudence of Tradition"):
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/05/the-jurisprudence-of-tradition-10-points-on-justice-kennedys-opinion-in-town-of-greece.html
[10] Here are two of his "10 points":
1. By far the most prominent theme in Justice Kennedy's opinion is
the
role of tradition and historical practice in validating the practice
of legislative prayer. That point is repeated no less than six or
seven times in all kinds of contexts. The practice is "part of our
expressive idiom" and our "heritage." Justice Kennedy writes that
"Marsh is sometimes described as "carving out an exception" to the
Court's Establishment Clause's jurisprudence," inasmuch as no "tests"
were applied in Marsh, but in reality, "[t]he Court in Marsh found
those tests unnecessary because history supported the conclusion that
legislative invocations are compatible with the Establishment Clause"
That's important. It indicates that the mode of analysis in Marsh was
not a carve-out, so m
Re: Hobby Lobby transcript
Sorry to come late to the discussion. I have not read the transcript, and these comments are in response to two points made in the discussion. 1. Smith as a scandal. Strong language, and while I agree with one's right to use such language, I find that the failure to consider the other side is unfortunate. A great thing about freedom of religion is that, implemented well, it enables people with wildly different views to live together peaceably. Thus general laws that are not targeted to religion should apply to all although limited accommodation may not matter too much. But when religious people may violate general laws that non-religious people or people with different religious views may not violate there is a clear preference for religion over non-religion and one religion over another. One might usefully discuss what "practice of religion" means, but I have some doubts that it includes interfering with another's legal rights because their exercise of those rights departs from your deeply felt religious beliefs. And yes, I do understand that some religions have absolutist tenets to prevent doctrinal violations by non-believers, but clearly we cannot live in a society in which a religious doctrine requiring the elimination of infidels gives rise to a "get-out-of-jail-free card." 2. I agree with Marty that the Court should decide these cases by holding that there is not substantial burden on the owners of Hobby Lobby and Conestoga, but for the reason that their asserted violation of their religious principles is too attenuated to be "substantial." To say that their claims of substantial burden are either correct or that the Court may not inquire into the substantiality of beliefs would give rise to the widespread use of religion to exempt people from general laws, resulting in a preference for religion over non-religion and a preference for one religion over another. And that would give rise to the very dissension and resentment that the religion clauses should prevent. 3. As a general matter I think that experts in constitutional law have some obligation to examine both sides of Supreme Court opinions. That does not prevent one from asserting that one side is right or wrong, but to denigrate opinions as scandalous is the kind of overstatement that undermines respect for the Court and serves to make the enforcement of rights against the majority view more difficult. In the light of the facts of these ACA cases I cannot help but wonder whether some of those who supported RFRA now regret that support. The characterization of Smith by many reminds me of the popular treatment of Citizens United backed up by the criticism of many Con Law scholars. As a teenager I firmly supported the rights of Communists to speak as being protected by the first amendment. I find the denigration of Citizens United seems based on a very different interpretation of the first amendment than the interpretation I had as a teenager and I think that it enhances a view among some members of the public that corporations in general are bad and therefore may be silenced during political campaigns. Jon On 2014-03-26 07:44, Marty Lederman wrote: Thanks very much to everyone for the responses. Some follow-ups: 1. Most importantly, in response to Alan, the less-restrictive "solution" that appeared to have some traction with the Justices was _not_ simply that the government could in theory pay for the services (with single-payer or a new tax scheme, for instance). Such a holding would be a radical deviation from decades of decisions -- Lee and Tony & Susan Alamo would have come out differently, for instance. And the SG would and should have resisted that idea strenuously, as he has done, in his briefs. The argument, instead, is that once the agency has _already_ offered an alternative (here, the "Notre Dame" solution) to a certain subset of objectors (nonprofits) -- thereby demonstrating that that alternative is viable for at least a certain group -- it has to treat other religious objectors the same, unless there is good reason to treat them differently. This is, in effect, merely _O Centro _all over again (recall that the government had no good reason for treating hoasca differently from peyote). As the SG indicated in his answers to questions about the secondary accommodation, there _might _be such a good reason for disparate treatment here: For instance, extending the accommodation to for-profit corporations _might _be far more costly to the government than if it is limited to nonprofits, depending on how many for-profit objectors are self-insured and use third-party administrators. (In such cases, the government effectively picks up the tab by giving credits to the TPAs.) Because these plaintiffs have not asked for that remedy, there hasnt been any occasion for the government to estimate such costs yet. B
RE: RFRA's constitutionality
I would argue that paying for health insurance coverage more closely resembles paying wages and that employee compensation that includes insurance creates a relationship between the insured and the insurance provider. While that line admittedly is fuzzy, I honestly do not see how it involves the entity providing compensation in the particular services paid for by the insurer. In that sense, I think the better view is to distinguish between involvement and payment of employee compensation. Of course that does raise the question of whether a court can make that judgment even though that judgment neatly avoids the constitutional issue and interprets RFRA to avoid the establishment question. If you argue that the courts, under the first amendment, may not decide on the sincerity of the religious claim, then I have a large number of exemptions from general laws for you. You just need to give me a few years to found my religion based on the idea that all men are created equal and endowed by their Creator with certain inalienable rights. [The last sentence reflects my personal view and not something I would teach although I do think the sincerity point needs to be discussed.] Jon On 2014-01-06 01:08, Brad Pardee wrote: The problem with the parallel to taxation is the nature of the funding. When we pay taxes, it's a blank check that Congress can use for anything it wishes. They can spend it on war or they can use it to feed squirrels in the park. There are no specific directions provide with the payment of the taxes, though. It's the same as salaries. We don't pay employees with limitations on the things they can spend their paycheck on. In contrast, insurance specifically enumerates the things it covers and the things it does not. Consequently, the employers who provide the insurance are being compelled to specifically spend money on coverage for contraceptives. Brad -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, January 05, 2014 12:07 PM To: religionlaw@lists.ucla.edu Subject: Re: RFRA's constitutionality I am sure it as been said before, but I cannot help stressing that nothing I know of in the ACA forces anyone to use contraceptives or to undergo an abortion. The religious freedom to make those decisions is fully preserved. As with having to pay taxes to support war, I do not consideration compliance with a government mandate on employee compensation interferes with religious rights protected by the first amendment, but then maybe the first amendment prevents courts from making that judgment. I am curious about the extent to which religion-law jurisprudence prevents courts from considering the sincerity of claims as well as the rationality of the nexus between personal feelings and religious belief. Jon ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: RFRA's constitutionality
I have reservations about equating the decision in Yoder with the endorsement of the specific practices that make Judy, Marci and others uncomfortable. A short answer is the same as I would give for polygamy. There are less restrictive means of dealing with the evils than outlawing the legitimate religious aspects of a long-existing community. Allowing exceptions from some child-protective laws (such as school attendance) does not mean not policing abuses. Rather than a freedom of religion question, these concerns raise the issue of how far the state should intrude into domestic life. While we all do not like to see children harmed, what justifies state intrusion raises substantial issues of what it means to live in a free country. I fear that child abuse reporting laws, giving immunity for reporting child abuse, have been abused and certainly give rise to the potential for abuse. But we also have many egalitarian and intentional and utopian communities both religious and not based on religion. This this takes me off list and this is really beyond the scope of religion law, I just want to say that I would not judge the wisdom of the decision in Yoder by the fact that one can find abusive practices in Amish communities. Jon On 2014-01-05 16:56, Marci Hamilton wrote: That reality is compounded by the presence of sibling incest and the community's choice to stand behind the boy and expel a girl who tells on the boy. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 5, 2014, at 4:21 PM, Judy Baer wrote: Marci, I share your discomfort with Yoder. Martha Nussbaum wrote that the impact of Yoder was worse for Amish girls than for Amish boys, because the boys learned marketable skills and the girls did not. So it was harder for girls to leave the community. Judy Baer Sent from my iPhone On Jan 5, 2014, at 11:41 AM, Marci Hamilton wrote: Michael-- My answers are interlineated below 1. Congress never debated the contraception mandate as part of Obamacare. Thus the religious right never lost in Congress, I do not think this meets my point. The paid lobbyists for many religious groups watched this statute closely and let their views be known. You don't need a floor debate to lose in Congress. In fact, that describes most legislation. Moreover, if they hadn't been paying attention, that is a political loss in our system. 2. Are there any reports of any women objecting formally? I understand they are the group that you claim are harmed, but surely they could sue and properly bring this issue. In reality, the vast majority of women will either receive coverage or continue to buy ella and Plan B (for-profit cases rarely oppose traditional contraception.) Sandra Fluke will get her contraception-- she's not working for one of the few companies impacted. It makes no sense to risk your job until the courts rule on whether employers have RFRA rights to carve up health plans according to their religious lights. We shall see what is really at stake once the Court rules. 3.The Establishment Cla because the contraception mandate pushes some religions out of a debate that has been very real on the value of contraception. You are assuming contraception helps women, and undoubtedly it helps many. But that is a value judgement, and the administration is using a regulation to try and end a debate on this (as I noted above, without Congress's approval. As a scientific matter, fully suppor cientists, contraception helps the entire society by reducing health costs, freeing women to choose when to have children (ie, releasing them from biological determination), treating rape victims, and treating many serious illnesses including endometriosis. Those are facts, which are included in the women's health care study which was basis of the contraceptive mandate. 4. There are only about 50 for-profit cases in a nation of for-profit businesses. As of today, the exemption being argued for is extremely narrow, and it is unfair to say this is a vast "war on women" when this is a lot like _Yoder_, where few will want this exception. The exemption being requested ngful boundary. The argument applies equally to emerge ood transfusions. In my view, treatment of a rape victim is as compelling an interest as a blood transfusion (treatment a Jehovah's Witness employer would object to). If these employers win, I expect children's vaccinations are next. Yoder opened the door for the many parents who claim a religious reaso their children to school, to the detriment of those children. I am not nearly as sanguine about Yoder as is on the needs of each and every child. Marci On Sun, Jan 5, 2014 at 7:13 AM, Marci Hamilton < target="_blank">hamilto...@aol.com> wrote: http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private
Re: RFRA's constitutionality
I am sure it as been said before, but I cannot help stressing that nothing I know of in the ACA forces anyone to use contraceptives or to undergo an abortion. The religious freedom to make those decisions is fully preserved. As with having to pay taxes to support war, I do not consideration compliance with a government mandate on employee compensation interferes with religious rights protected by the first amendment, but then maybe the first amendment prevents courts from making that judgment. I am curious about the extent to which religion-law jurisprudence prevents courts from considering the sincerity of claims as well as the rationality of the nexus between personal feelings and religious belief. Jon On 2014-01-05 12:41, Marci Hamilton wrote: Michael-- My answers are interlineated below 1. Congress never debated the contraception mandate as part of Obamacare. Thus the religious right never lost in Congress, I do not think this meets my point. The paid lobbyists for many religious groups watched this statute closely and let their views be known. You don't need a floor debate to lose in Congress. In fact, that describes most legislation. Moreover, if they hadn't been paying attention, that is a political loss in our system. 2. Are there any reports of any women objecting formally? I understand they are the group that you claim are harmed, but surely they could sue and properly bring this issue. In reality, the vast majority of women will either receive coverage or continue to buy ella and Plan B (for-profit cases rarely oppose traditional contraception.) Sandra Fluke will get her contraception-- she's not working for one of the few companies impacted. It makes no sense to risk your job until the courts rule on whether employers have RFRA rights to carve up health plans according to their religious lights. We shall see what is really at stake once the Court rules. 3.The Establishment Cla because the contraception mandate pushes some religions out of a debate that has been very real on the value of contraception. You are assuming contraception helps women, and undoubtedly it helps many. But that is a value judgement, and the administration is using a regulation to try and end a debate on this (as I noted above, without Congress's approval. As a scientific matter, fully suppor cientists, contraception helps the entire society by reducing health costs, freeing women to choose when to have children (ie, releasing them from biological determination), treating rape victims, and treating many serious illnesses including endometriosis. Those are facts, which are included in the women's health care study which was basis of the contraceptive mandate. 4. There are only about 50 for-profit cases in a nation of hundr profit businesses. As of today, the exemption being argued for is extremely narrow, and it is unfair to say this is a vast "war on women" when this is a lot like _Yoder_, where few will want this exception. The exemption being requested has boundary. The argument applies equally to emergency c ransfusions. In my view, treatment of a rape victim is as compelling an interest as a blood transfusion (treatment a Jehovah's Witness employer would object to). If these employers win, I expect children's vaccinations are next. Yoder opened the door for the many parents who claim a religious reason not r children to school, to the detriment of those children. I am not nearly as sanguine about Yoder as other n the needs of each and every child. Marci On Sun, Jan 5, 2014 at 7:13 AM, Marci Hamilton < t="_blank">hamilto...@aol.com> wrote: 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 ssages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Links: -- [1] mailto:malla...@camden.rutgers.edu [2] mailto:lederman.ma...@gmail.com [3] http://www.jstor.org/stable/1073407 [4] http://www.jstor.org/stable/1073407 [5] mailto:lederman.ma...@gmail.com [6] mailto:Religionlaw@lists.ucla.edu [7] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [8] mailto:Religionlaw@lists.ucla.edu [9] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [10] mailto:Religionlaw@lists.ucla.edu ___ 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: RFRA's constitutionality
In COOPER v. AARON, 358 U.S. 1 (1958) the Court quoted the first Justice Marshall's word in Marbury v. Madison: "It is emphatically the province and duty of the judicial department to say what the law is." The Court followed this quote by saying, "This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution" Although this statement overstates the supremacy of the Court given the constitutional separation of powers, it nevertheless states a basic principle in the context in which it was used, namely the interpretation of the constitution in controversial areas in which there will be resistance to the Court's decision. In my view of judging, Supreme Court justices (and other judges) should use their best judgment in deciding cases based on a perspective peculiar to judges. Once on the Court, a new justice needs to (and this perhaps takes time) put aside political and other views developed in other contexts and learn to see the country and its needs from the vantage point of the highest court. At times that means deciding best how to interpret constitutional provisions to achieve their broad purpose in the light of national circumstances. In the area of freedom of religion that requires providing interpretations that minimize disharmony and promote tolerance. Congress responds to the kind of political pressures that we would hope do not guide the Court. As I have said, and I think that it is almost a truism, rights need to be protected against the majoritarian processes and in that sense I do not think that constitutional rights should be interpreted by the Congress which lacks the kind of broad perspective that the Court should have. With RFRA I think Congress tried to interfere with the good judgment of the Court in Smith by responding to a democratic coalition. That is not the way to define constitutional rights as the Court rightly decided in Boerne. Certainly Congress has the authority to grant statutory rights insofar as they are not inconsistent with constitutional provisions. But I think it is unwise for advocates to try to upset Supreme Court decisions by the political process. In that sense I think RFRA was unwise as applied to all statutes. Finally RFRA reinforces the view that the political process should override the Court. I do not like to say never, and there are means for Congress to discipline the courts including the Supreme Court. But does anyone think the Congress should have been able to overturn the decision in Brown by legislation. At the same time, I can think of no limiting principle to allow the Court to amend all statutes by holding RFRA unconstitutional as applied to federal law. My fear now revolves around the hyper-partisan climate. The use of RFRA reinforces it and I cannot help suspecting that some of the liberal support for it resulted from a dislike of Justice Scalia. In any event, reinforcing the public perception that the Supreme Court decides on narrow political preferences undercuts the necessary respect the Court needs for its anti-majoritarian decisions. RFRA to me reinforces the idea that rights are political, which they are, but need respect because of their minority nature in a democratic country. Thus, I think we do a disservice to the development of rights when we overemphasize their political nature and give the public the impression that the Supreme Court decides based on the preconceived views of those who become Justices. Jon On 2014-01-04 11:29, Marci Hamilton wrote: Marty-- I apologize for missing this because I think it raises an important distinction. Thanks for raising it. I am saying in part that Smith supports a reading of beyond the judicial ken, but I was basing my argument more on the Court's structural jurisprudence (which Boerne fits squarely into) where the branches (and state vs fed govt) have distinguishable stronger and weaker capacities (which may overlap in some instances). In my view courts legitimately take over the primary legislative role of policy setting (which is what strict scrutiny is) in cases where there is strong suspicion of a constitutional violation, eg, race based distinctions or a law that is not neutral or generally applicable. It is illegitimate for them to take over the legislative role when the law does not create a strong suspicion of a constitutional violation, eg, a neutral, generally applicable law. In the RFRA, RLUIPA cases, we routinely see federal courts answering questions they have no capacity to answer, either from judicial inexperience (land use in particular) or because the parties and rules of evidence and their own institutional restrictions make it impossible to build a record that will yield a well-reasoned or at least informed public policy. If we were in a civil court system, or courts could hold open hea
RE: courts and lawmaking
I'll vary the hypothetical: employer refuses to give maternity leave to unmarried women because it is against their beliefs to participate in covering the effects of sinful behavior. After Brown v. Board of Education there were many people in the south who believed that their religion mandated the position of blacks in society. Statutes were enacted by the Congress to try to interfere with busing. Suppose instead Congress had enacted a statute prohibiting the enforcement of Brown and statutes implementing it against people whose religious beliefs justified them in believing in the separation of the races. Suppose Congress in execution of its power to enforce the 14th amendment had tried to reinstate the separate but equal doctrine by amending all federal statutes to provide for an exemption from compliance for people who had religious objections. That really is what RFRA tries to do. I agree that for many religious people, especially those who take their religion very seriously, religion governs their whole life. I would agree that we should, where practical, not try to interfere. I have no objection to teachers wearing discrete indicia of their faith in class, for example. But it goes too far to say that when a woman needs an emergency abortion, and there is only one doctor available, that that doctor should be allowed not to save the woman's life because of a sincerely held religious belief. Private businesses provide services in the public interest. Some services are more crucial to others. A pharmacy should always have someone on call to provide things like the morning after pill unless there is a close-by pharmacy that would provide it. Free exercise should not be taken to license withholding services that I think I need, where alternatives are not available. One is not forced to enter particular businesses or professions if their religious beliefs prevent them from providing those services. That is my view. I am not sure how far the law should go, but I do not think it should enable Hobby Lobby to avoid paying for an employees mandated health services in the health insurance they provide. Jon On 2013-12-30 19:29, Brad Pardee wrote: It seems that this definition of free exercise is very narrow in its understanding of what it means to practice one's religion. Some choose to compartmentalize life into religious areas and non-religious areas with different rules to guide their actions in each. I think most people, though, exercise their faith in all areas of life 24/7. I'm exercising my religion when I tell the truth, when I try to treat people with kindness, when I advocate for social justice. The abolitionists of the mid-1800s who came out of the second Great Awakening were exercising their religion when they denounced slavery and when they aided escaped slaves. They didn't limit their activities to their churches, their homes, or gatherings of co-religionists. The same is true of civil right activists such as the Rev. Martin Luther King , Jr. It would be impossible to make the case that Rev. King's religious beliefs were not part and parcel of his fight for racial equality. There is a world of d! ifference between freedom of religious belief and worship and free exercise of religion. I don't believe RFRA would authorize the kind of hiring you describe. Nobody suggests that, in order to accommodate religions freedom, an employer can require its employees to be virgins because of the employer's belief that pre-marital sex is wrong. And in the case of Hobby Lobby, they are not claiming that they can require employees to refrain from using contraception because the owners of Hobby Lobby believe contraception is wrong. What Hobby Lobby has stated is: "The Green family's religious beliefs forbid them from participating in, providing access to, paying for, training others to engage in, or otherwise supporting abortion-causing drugs and devices." None of that has any bearing on what employees do with their paychecks or what decisions they make in their private lives. It simply says that their religious beliefs forbid them to be involved in procuring those contraceptives . Brad Pardee -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Monday, December 30, 2013 3:59 PM To: religionlaw@lists.ucla.edu Subject: RE: courts and lawmaking While I am not sure that I can sustain this view in the marketplace of ideas, I think that "free exercise" means practice one's religion, something one does in churches or other such places or even at HumanLight festivals, and at home, and at places with groups of co-religionists. To me, Smith gave a good interpretation that serves the overall purpose of the religion clauses. And to me, RFRA authoriz
Re: courts and lawmaking
Marci, Perhaps, like murder, there should be no limitations period when it comes to child abuse. But I think that altering the statute of limitations should be done prospectively, not retroactively. To the extent that statutes of limitations make sense, and they do, retroactive change defeats their purpose. Beyond that there is a question of the ability to get justice long after the fact. Thus, changing the limitations period because of public abhorrence of certain actions, deplorable as they are, may seriously neglect other fundamental values, such as a fair trial. To what extent would proceeding vigorously against current abuse serve the interests of getting rid of the practice? After that consider the extent to which compensation undoes the serious effects of the abuse and serves the need for retribution as opposed to the harm done to the values of a fair trial. And is it not at least some solace to victims that the crime to which they have been subject is now being punished even if no action can be taken against the person who abused them. My point here is not to answer that question, but to suggest that changing the statute of limitations because of public outrage without considering the harm to the values served by such statutes is a mistake akin to allowing public outcry to limit other fundamental freedoms. Jon On 2013-12-29 22:20, hamilto...@aol.com wrote: That is a fact. I was told by a member of Congress during RLPA's hearings that he knew full well it would be unconstitutional, but he would vote for it regardless. They game play constitutionality both ways, actually. Just this year, two members of the PA legislature (who are not lawyers) have insisted that under the PA Constitution, statute of limitations reform for child sex abuse is unconstitutional. That is unsupported by a single case, but they are using constitutional arguments to cover for the Catholic bishops. These kinds of games counsel in favor of observing the structural limitations of the branches, and not just results. They need to be reminded of their role on a regular basis, because they are all willing, if given the opportunity, to take the power others have if they can get it. That is the principle at work when Justice O'Connor stated in _NY v US _that just because the states acquisced in an unconstitutional takeover of their power did not make that federal takeover constitutional. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com [1] [2] [3] -Original Message- From: Graber, Mark To: Law & Religion issues for Law Academics Sent: Sun, Dec 29, 2013 4:00 pm Subject: RE: courts and lawmaking Probably worth noting that there is an entire literature in political science, both with respect to American courts and foreign tribunals, on the political construction of judicial review. The general thesis, drastically oversimplified (and articulated differently by different people), is that constitutional review exists because most elected officials most of the time think that having courts declare laws unconstitutional serves a variety of political interests. MAG From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Paul Horwitz [phorw...@hotmail.com] Sent: Sunday, December 29, 2013 3:45 PM To: Law & Religion issues for Law Academics Subject: RE: courts and lawmaking Subject: Re: courts and lawmaking From: phorw...@hotmail.com Date: Sat, 28 Dec 2013 23:17:10 -0500 To: religionlaw@lists.ucla.edu CC: religionlaw@lists.ucla.edu Although I don't share this orientation, this is certainly an interesting discussion. I'm wondering how New York Times v. Sullivan and Roe v. Wade would fare under this standard, and possibly Baker v. Carr or Miranda. On Dec 28, 2013, at 10:51 PM, "Marci Hamilton" mailto:hamilto...@aol.com>> wrote: Eugene- I take it you would not have overturned the Lochner line of cases? Your defense of unaccountable, robust policy making by judges would revive the federal court's role in those cases and reverse the reasoning of, eg, Williamson v lee optical. You have also failed to articulate any meaningful limit on federal court policy making. Perhaps you think there should be no limit, but that is not consistent w the separation of powers cases or the Framers' belief that all entities holding power must be limited and that one means of limitation is to assign different primary roles to each branch. also--It is not enough to say that Congress can fix a bad decision to excuse a violation of a branch's structural role. I also question your broad generalizations in describing purported federal judicial policy making . As you have to and do concede, federal common law is forbidden,
RE: Response to Tom Berg (and others)
Taking a broader view, I believe that the first amendment religion clauses, first and foremost, are there to minimize disharmony in the society that results form government supported religion and the denial of one's ability to practice one's religion. To that end, I think that Employment Division v. Smith as modified by the Santeria case provides the best baseline from which to proceed. Once we get beyond the actual practice of religion at home or in a house of worship, or the violation of important laws in a house of worship or at home (home is protected to some extent by the 4th Amendment, etc.) we get to some difficult cases. At this point we need to keep in mind that exemption from laws could, if widespread, cause jealous and possible hostile reactions from those who do not get the privilege of those exemptions. Consider the exemption from military service for certain Jewish sects in Israel. When I was college there were meals at which most of us ate casserole dishes, but kosher students got steak. Not a big deal, but annoying. Since the contraceptive the cost of ordinary contraception is not great, one might argue exemption is no big deal (I know there are arguments on the other side). Annoying perhaps. I just noticed that the Supreme Court declined to hear a case contesting the health care mandate on employers. If a business were exempt from providing contraceptive coverage for employees, I imagine that Christian Scientists operating a business would be exempt from providing health care insurance. At that point a Christian Scientist would have a competitive advantage. That would be a big deal. So it seems to me that providing exemptions from laws of general application on religious grounds should violate the first amendment. In minor situations it may present little cause to fear disharmony, but extended to health care and requirements the exemption from which would provide a competitive advantage, serious concerns about the major purpose of freedom of religion arise. With health care mandates, I would argue that participation in business (the competitive market place) people need to conform to the general laws (Employment Division) as long as the laws do not have the purpose of going against a particular religion. I have long believed that the RFRA formulation authorizes polygamy because all of the evils of polygamy can be handled by less restrictive means. In short, given my view of the purpose of the religion clauses in the first amendment, I would hold that exemptions from general laws violate the Establishment Clause. Of course, to fulfill the goals of the value of harmony, one cannot follow a doctrinal dictate in all cases (I doubt that there can be definitive legal doctrine in these cases). Conscientious objection can be allowed to withstand a first amendment challenge so long as alternative service is required. While that, on its face would be a violation, practical considerations of promoting harmony by allowing a safety-valve where failure to do so might generate extreme hostility justify exceptions. But those exceptions can not be brought within the doctrine any more could the prohibition of polygamy be brought within the RFRA doctrine if it was found necessary to continue that prohibition for various practical reasons. Legislative prayer, if upheld, clearly forms an exception to the general doctrine as does "Trust in God" on the money. Since the need to profess a belief in God often forms a requirement to run for public office in this country, it results from decisions of many individual voters, arguably the first amendment is not implemented. But I do not think anyone can claim that in general there is a not religious test for public office in this country in an overwhelming number of cases. Jon On 2013-12-01 13:37, Alan Brownstein wrote: Thanks for the kind comment, Nelson. While the contraceptive coverage in this case may not cost the employer anything, and the Court could limit its holding in this case to those particular facts, I think there is a somewhat broader, but still fairly limited, way to conceptualize this case. Here the government is requiring employers to provide intangible, fungible goods (insurance coverage and/or the money needed to purchase it) to third parties (their employees). Whenever this is the burden imposed on a religious objector, it is relatively easy for the government to take over the responsibility for providing such goods to their intended beneficiaries -- except the government would bear the cost of doing so. Their are two problems with assigning this burden to the government, however. The first, as noted, is the financial cost of providing these goods to their intended beneficiairies. Requiring the objector to contribute the cost of the goods to some other public cause (ther! eby relieving the
RE: "Patently Frivolous" and discrimination
Someone raised the issue of the difference between paying a salary which the recipient uses in ways that would violate the payor's religion if done by the payor. If the idea is that one cannot be forced to pay money where that money would be used in ways in violation of the payor's conscience or religious beliefs then a pacifist should not have to pay taxes where some of that money might be used in ways that violate his/her beliefs. How are the two cases different aside from the greater impact of allowing people not to pay taxes because government acts in ways that violate their beliefs? Jon On 2013-11-28 02:04, Volokh, Eugene wrote: Jim Oleske writes: My sense is that the language from the Piggie Park Court was reflective of an accepted notion at the time that for-profit businesses did not have a presumptive right to religious exemptions, even if non-profit religious institutions might have such a right Why would that be so, given _Braunfeld v. Brown_? I agree that the challengers lost there, but they surely didn't lose on the grounds that for-profit businesses lack Free Exercise Clause rights because they are commercial concerns. I would think that the likelier explanation of the _Piggie Park _"patently frivolous" comment is simply that the Court viewed the government's interest as so obviously strong as to clearly trump any religious objection. The _Lee _language is stronger support for a commercial-activity-excluded objection than the _Piggie Park _language, I think. But the Court in _Lee _ultimately still applied strict scrutiny, and it seems to me that the application of heightened scrutiny to commercial for-profit activity - the sale of one's labor - in _Sherbert_, _Thomas_, and the like suggests that religious exemption regimes extend to people's for-profit activities as well as their nonprofit activities. Eugene ___ 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: New Twist On Challenge to ACA Contraceptive Mandate
Marci,
I have trouble seeing the compelling nature in the government's
interest to provide contraception. The cost is too low, and basically,
contraception allows for pleasure and the enhancement of interpersonal
relationships. The health justification comes closer, but compared to
the provision of needles for drug use (I do not know if that is a
compelling interest), there is certainly not generally addiction
involved. Even with abortion, government does not need to fund it--the
compelling interest is in not making it illegal.
Jon
On 2013-08-17 10:57, Marci Hamilton wrote:
I agree w Chip and Jim on the baseline issue, but also the previous
point about the point of the Religion Clauses is not just rights for
the believer but also the path to peace in a diverse religious
culture. Lee and Bowen v Roy stand for the proposition that if one
chooses to employ or to take advantage of govt benefits, the Free
Exercise Clause does not provide a way out of the obligations that
come w the voluntary decision made by the believer. RFRA opens a door
for believers to get past these sensible decisions, but I do not
think
that even if the parent who voluntarily chooses to cover his children
over the age of majority could prove substantial burden, the govt
does
have a compelling interest in giving women the most realistic
opportunity to choose for themselves whether to use contraception for
any reason and to make sure those choices are as unhindered as men's
decisions to pursue their own choices. The women are being protected
by the govt from coercion by employers and parents.
The govt also has a compelling interest in keeping health care costs
under control. Chip mentions unwanted pregnancy; I mentioned some of
the medical reasons reproductive health services are needed, which
can
affect GDP if untreated. And finally, there is the govt's legitimate
compelling interest in ensuring the health care system does not
discriminate on the basis of gender or religion and does enable
women's choices. There is no less restrictive means of giving each
woman her own choice regarding reproductive health than giving her a
choice.
The abortion decisions to date have all been about what the state can
do to restrict women's rights. But those restrictions are not
constitutionally required. Just because the government is not
required
to pay for reproductive health care does not mean the govt does not
have a compelling interest in providing it. This is a new scenario
where the govt is on the side of women and reproductive rights, which
entails new ways of thinking.
Marci
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 17, 2013, at 8:54 AM, James Oleske
wrote:
Eugene,
No federal or state law required the Amish farmer in Lee to employ
workers, but once he made that choice, the Supreme Court used the
federal requirements governing employment benefits as the baseline
for evaluating externalities ("Granting an exemption from social
security taxes to an employer operates to impose the employer's
religious faith on the employees.").
Likewise, although no federal or state law requires parents to put
their adult children on their insurance, once they make that choice,
the argument is that federal requirements governing health benefits
should be used as the baseline for evaluating externalities.
Of course, it's certainly possible to argue that the baseline should
be set in a different place in parent/adult-child context than in
the employer/employee context, or in the health insurance context
than the employment context, but I think Chip is right that --
wherever one ultimately comes out -- this is a classic baseline
problem.
- Jim
Jim Oleske
Lewis & Clark Law School
SSRN Page: http://ssrn.com/author=357864 [3]
Faculty Page: http://law.lclark.edu/faculty/james_oleske/ [4]
On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene wrote:
But wait: How can you read ACA as setting a baseline that _the
parents _should guarantee their adult children a full bundle of
health services? The ACA doesn’t require parents to do this. It
allows parents to do this, and many parents do indeed do this, but
adult children have no right vis-à-vis the parents to get
insurance coverage. The father is free to just tell his children,
“Sorry, I won’t get you health coverage”; that’s not
“taking” health coverage from them, it’s just choosing not
to give health coverage to them. How is it “taking” for him to
offer to give less than complete health coverage to them?
Eugene
FROM: religionlaw-boun...@lists.ucla.edu [1]
[mailto:religionlaw-boun...@lists.ucla.edu [2]] ON BEHALF OF Ira
Lupu
SENT: Friday, August 16, 2013 6:07 PM
TO: Law & Religion issues for Law Academics
SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate
Eugene and I agree that this legislator is not substantially
burdened in his religious freedom, be
RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)
he latter pertains to whether an individual should follow his conscience regardless of what others, including the government, may do to him or her. Ellis M. West Emeritus Professor of Political Science University of Richmond, VA 23173 804-289-8536 ew...@richmond.edu [1] -Original Message- From: religionlaw-boun...@lists.ucla.edu [2] [mailto:religionlaw- [3] boun...@lists.ucla.edu [4]] On Behalf Of Brad Pardee Sent: Friday, August 16, 2013 2:36 PM To: 'Law & Religion issues for Law Academics' Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate) I'm not certain that this is a correct understanding of the purpose of freedom of religion. It's always been my understanding that the essence of religious freedom is that a person is not forced to choose between obeying their God and obeying their government. That's certainly at the heart of free exercise, where the government ought not to have a blank check to command what God prohibits or to prohibit what God commands. (It’s the same philosophy behind conscientious object legislation, where it's a matter of personal conscience rather than God that is involved.) It has its limitations, just as freedom of speech does not protect slander, libel, or the proverbial "yelling fire in a crowded theater". There are certainly instances where it is truly necessary to compel a person to act in a certain way, even if it is in violation of the tenets of their faith, but that won't be the case in every instance just because the legislature wants it to be so. At any rate, though, I believe that this is the purpose of religious freedom. Ideally, people who disagree with one another can choose to live in harmony with each other, whether the disagreement is a matter of religion, economics, foreign policy, or whose team is best positioned to win the Super Bowl, but I don't think that harmony is the driving purpose behind religious freedom. Brad -Original Message- From: religionlaw-boun...@lists.ucla.edu [5] [mailto:religionlaw- [6] boun...@lists.ucla.edu [7]] On Behalf Of mallamud Sent: Friday, August 16, 2013 11:16 AM To: religionlaw@lists.ucla.edu [8] Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate Freedom of religion should promote harmony. Live and let live. It should not provide religious people with the ability to interfere with the provision of benefits to those who do not share the same views. This is a classic case of an officious intermeddler trying to cause trouble because of personal sensitivities. Even were he to have a right, I think this is a case where it is not right to assert it. Even if he would be satisfied with a judicially mandated provision in the policy excluding coverage for anyone with religious objections to it, it is just wasting money and causing trouble. Religious people should not interfere with benefits given to people who do not share their beliefs and if RFRA really gives them the option to do so, RFRA is not furthering the harmony religious freedom should promote. ___ To post, send message to Religionlaw@lists.ucla.edu [9] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- [10] bin/mailman/listinfo/religionlaw [11] 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 [12] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- [13] bin/mailman/listinfo/religionlaw [14] 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. Links: -- [1] mailto:ew...@richmond.edu [2] mailto:religionlaw-boun...@lists.ucla.edu [3] mailto:religionlaw-boun...@lists.ucla.edu [4] mailto:religionlaw-boun...@lists.ucla.edu [5] mailto:religionlaw-boun...@lists.ucla.edu [6] mailto:religionlaw-boun...@lists.ucla.edu [7] mailto:religionlaw-boun...@lists.ucla.edu [8] mailto:religionlaw@lists.ucla.edu [9] mailto:Religionlaw@lists.ucla.edu [10] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [11] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [12] mailto:Religionlaw@lists.ucla.edu [13] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [14] http://lists.uc
RE: New Twist On Challenge to ACA Contraceptive Mandate
While this discussion presents an opportunity to engage in an intellectual discussion of the doctrine used to implement RFRA, it also highlights the problem involved its sweeping application. As a legal I think that an earlier post (to which I referred in a previous post) suggesting that the plaintiff did not have standing ends the discussion relevant to the case. Alternatively I see no substantial burden. Nothing compels the plaintiff or his daughters to use contraception. The insurance provides benefits for which he pays but need not use unless he or his daughters make an independent decision to do so. The pork hypo in Allen Brownstein's post involves limiting a portion salary to purchase of something the recipient of the salary does not want and is arguably an unlawful seizing of purchasing power. Although in law school torts class I was taught to focus on "result within the risk" rather than proximate cause, I think that the reasoning under proximate cause allows courts to avoid getting involved in complex discussion like the one on this thread. In the case under discussion here whatever upset is caused by the plaintiff and his daughters having the capacity to purchase contraception is just too removed from the government action because, for their non-contraception beliefs to be violated, an intervening action must occur: they must act affirmatively to obtain contraceptives. [Note that there is no additional cost to the insured for the contraceptive coverage. But in any event, when we buy group health insurance we often get coverage (like maternity benefits) that many of us are in no position to use.] Returning to my basic premise, allowing people to use the courts to vindicate emotional upset caused by mere disagreement with government policies will result in disharmony rather than the ability to live together in a diverse society, a major purpose of the religion clauses. Jon On 2013-08-17 12:31, Alan Brownstein wrote: This has been a fascinating thread. I'm on vacation and have not had the opportunity to participate except for a quick comment right now. With regard to the substantial burden, would the analysis change if we characterized the ACA (at least for employees who would not receive subsidies for their insurance) as a regulation that requires employers to pay part of their employee's compensation package with a health insurance policy? I assume that if the government required employers to pay their employees 5% of their salary in non-transferable pork vouchers, that would be a substantial burden on individuals who for religious reasons do not eat pork -- even though I could just refuse to use the vouchers. I'm not sure that my hypo can be reasonably analogized to the ACA, but if it can, then I think the substantial burden analysis might be different. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Friday, August 16, 2013 5:49 PM To: Law & Religion issues for Law Academics Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate I agree; as I wrote near the start of the thread, "I'm not sympathetic to the legislator's claim, and I'm not sure that the provision of only a general insurance policy and not the one with the exceptions substantially burdens the legislator's belief. Indeed, the legislator's ability to send a disclaimer to the insurance carrier promising not to use certain services would, I think, suffice to eliminate any burden he might feel from having the policy. Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged burden imposed by minimum wage law on employees who felt a religious duty to volunteer was eliminated by the possibility of just giving the money back)." But that's a very different argument from the argument that the legislator's seeking a narrower insurance policy is "imposing on his daughters." The problem with his claim isn't that he's somehow denying his daughters something to which they're entitled, or that his conduct creates an externality. Eugene ___ 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/m
RE: New Twist On Challenge to ACA Contraceptive Mandate
Take the hypothetical of food stamps that cover the purchase of meat, including pork. Could a kosher person or a Muslim who believes his religion does not permit eating pork sue successfully to compel the government to issue food stamps that do not permit their use to buy pork? Wouldn't the answer be that the decision to buy pork is retained by the individual just as the insurance policy does not require anyone to obtain contraceptives, let alone use them. Jon On 2013-08-16 17:38, Volokh, Eugene wrote: I still don't understand the rhetoric of "imposing on his daughters" here. Plaintiff is entitled, as a benefit for himself because of his employment, to coverage for his 18-year-old daughters as well as for himself. But it's his choice; he is entirely free to say "Sorry, gals, you're on your own now." Maybe that's unkind towards to his children, but it's not something that the law views as "imposing on his daughters the cost of medical insurance." Rather, it's "declining to give the daughters a gift [albeit a subsidized one] of medical insurance." (Incidentally, wouldn't he still have to pay for his daughters under many employer plans, which reasonably charge extra for extra insureds?) In this respect, it's very much like a parent's declining to pay for his adult children's college. Now it's true that the plaintiff "wants it both ways," and maybe his employer shouldn't give him that option. But what I don't see is how his wanting it both ways is "imposing on his daughters" (at least assuming I'm right that leaving off the daughters entirely isn't "imposing" on them). It's just giving them a gift that is somewhat less valuable than what they might want, and that what he might easily give them (again, like paying for their Notre Dame education and not their Princeton education). How is one adult's choice to give another adult a slightly less valuable gift than he could have otherwise given an "externality imposing event," at least if "externality imposing event" is to have any meaning? Eugene FROM: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Ira Lupu SENT: Friday, August 16, 2013 2:18 PM TO: Law & Religion issues for Law Academics SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate The difference between the college scenario that Greg raises and the health insurance scenario may be the universal entitlement to the latter that the ACA creates. As others have said, the Missouri plaintiff is not obligated to have a family health insurance policy, nor is he obligated to include his children on his policy. But if he left them off his policy entirely, they would have to buy health insurance on their own. But this plaintiff wants it both ways. He wants the benefits (lower premiums, information) of the family policy for his non-minor daughters, but he wants to exclude them from coverage of pregnancy prevention services. It is that move -- keep the family policy benefits for himself, while imposing on his daughters the separate costs of pregnancy prevention services to which the daughters are otherwise legally entitled -- that is the externality imposing event. Cutter does not say all externalities are fatal -- it just says that RLUIPA (and by implication, all RFRA's) should be construed with third party costs in mind. In the Missouri case, the third party costs might be sufficient to force a construction that denies the exemption. Indeed, if courts are disabled from measuring the substantiality of the burden, as many plaintiffs argue in these ACA cases, there is all the more reason to let third party costs operate as a significant check on exemption claims. On Fri, Aug 16, 2013 at 4:08 PM, Douglas Laycock wrote: This scenario is occasionally litigated, without the religious twist, in bitter divorces. Dad refuses to help pay for college, or refuses even to fill out the financial aid forms, and the courts say he doesn't have to. The support obligation ends at 18. That obviously doesn't fit with the realities or expectations of middle class life, and I think a few states have changed it by statute. But that's the background law that underlies this discussion. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 [2] FROM: religionlaw-boun...@lists.ucla.edu [3] [mailto:religionlaw-boun...@lists.ucla.edu [4]] ON BEHALF OF Sisk, Gregory C. SENT: Friday, August 16, 2013 3:55 PM TO: 'Law & Religion issues for Law Academics' SUBJECT: RE: New Twist On Challenge to ACA Contraceptive Mandate I wonder how far some would be willing to take this proposition, that a parent's financial support for benefits to an adult child can rise to the level of coercion/leverage that if exercised with religious motivations could have constitutional implications. Let me offer a different scenario
RE: New Twist On Challenge to ACA Contraceptive Mandate
One problem,in my opinion, is that RFRA mandates a compelling interest test in areas unsuited to it. Regulation of employment and insurance coverage falls within the province of the legislature, and while I am worried about limits on freedom when the legislature gets too involved, this is not at issue in this case. Legally, I agree with the suggestion that the suit should be dismissed on standing grounds. But from a common sense point of view the provision of a benefit in circumstances in which you must affirmatively take additional action to receive the benefit should not be considered to impinge on the religious views of people who believe they should not have the benefit. Just do not use it. The policy with contraceptive coverage does not force the potential beneficiary to do anything and therefore should not be considered to affect his religious views, nor does it force his daughters to take advantage of it. Freedom of religion should promote harmony. Live and let live. It should not provide religious people with the ability to interfere with the provision of benefits to those who do not share the same views. This is a classic case of an officious intermeddler trying to cause trouble because of personal sensitivities. Even were he to have a right, I think this is a case where it is not right to assert it. Even if he would be satisfied with a judicially mandated provision in the policy excluding coverage for anyone with religious objections to it, it is just wasting money and causing trouble. Religious people should not interfere with benefits given to people who do not share their beliefs and if RFRA really gives them the option to do so, RFRA is not furthering the harmony religious freedom should promote. Jon On 2013-08-16 07:41, Friedman, Howard M. wrote: Eugene-- You are right that there is no obligation for you to furnish them insurance. But under the ACA individual mandate, the children are required to have insurance that includes certain women's health care coverage or else pay a penalty. And we have set up a system where it is much cheaper to keep children on their parents' employer-provided group policy than having the children buy policies in the individual market (assuming they do not have employer-provided insurance). So we have set up a system with all kinds of economic incentives that effectively pushes children who are not employed to stay on their parents' policy-- here one (if the suit is successful) in which the father is effectively imposing a religious objection on his grown children. He can presumably do that for minor children, but not adults. Howard - FROM: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] SENT: Thursday, August 15, 2013 11:33 PM TO: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) SUBJECT: RE: New Twist On Challenge to ACA Contraceptive Mandate This might just be my ignorance of the ACA, but I’m puzzled: How is a father “deny[ing] his 18 and 19 year old daughters on his insurance policy coverage for contraception” by insisting that any such policy not have such coverage? I had assumed that once my children are 18, I would have no obligation to get them insurance, or anything at all. I might well still get them such insurance (I do love them), but if I choose not to, I thought that this choice wouldn’t be “deny[ing]” them anything, just as my choice not to buy or lend them a car wouldn’t be “deny[ing]” them a car. And if I give them an insurance policy that’s not as good as the one they’d like (or that the government thinks they ought to have), I still wouldn’t be “deny[ing]” them the better coverage – I’d just be giving them, with no obligation on my part, something less than what they’d like (just as my buying them a car without air conditioning wouldn’t be denying them air conditioning). Or does the ACA impose such an obligation on the parents of 18- and 19-year-old adults? Eugene FROM: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Renee L. Cyr, Esq. SENT: Thursday, August 15, 2013 8:19 PM TO: religionlaw@lists.ucla.edu SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate Does anyone have a problem with a father, on religious freedom grounds, being able to deny his 18 and 19 year old daughters on his insurance policy coverage for contraception that the government has mandated generally? Those are the facts in this case. I think that's part of the point that Marci was making -- and not only for an 18 or 19 year old. The father wasn't just saying he didn't want his girls to practice contraception; he said he wanted them to not have access to contraception. The former would be a particular medication used for a particular purpose; the latter, as I see it, is access to the parti
Religion and the provision of medical services
Today the Catholic Bishops rejected the Obama compromise on covering contraceptive services and devices under employer-purchased health insurance. I realize that this issue has been discussed, perhaps thoroughly, on the religion-law list. Since community and staff action succeeded in blocking a merger between a secular and Catholic hospital where I live, I have been very concerned about the nature of the debate on religious accommodation. From a New York Times editorial a year ago: "EDITORIAL Women’s Health Care at Risk Published: February 28, 2012 "A wave of mergers between Roman Catholic and secular hospitals is threatening to deprive women in many areas of the country of ready access to important reproductive services. Catholic hospitals that merge or form partnerships with secular hospitals often try to impose religious restrictions against abortions, contraception and sterilization on the whole system." Where there is only one hospital serving a community, I would suggest that it should be treated as other monopoly services are (think of innkeepers' duty or the obligation of a public utility to serve everybody) and required to provide a full range of medical services unlimited by religious beliefs. If a Catholic hospital serves a community that can support only one hospital, then its presence prevents other hospitals from entering the market. The hospital is effectively imposing Catholic religious views about health treatment on those in that market. While accommodating religious views of doctors and hospitals may be OK here there are plenty of alternatives, where there are not, I think that hospitals and doctors need to treat patients in accordance with good medical practice unlimited by the religious views of the doctor and hospital. Where there is a clash between the deeply-felt beliefs of a medical provider and the needs and desires of the patient, I really do not understand why it is not clear that it is the patient's interests that must prevail. When the government provides money that can be used for religious education, we accept that where we say the money is provided to the parents and students who decide to use it for religious purposes. Thus, when an employer, private or non-profit, provides health insurance to its employees, it is effectively the decision of the employee to choose to use contraceptive services. When an institution hires an employee who does not agree with the institution's religious views, I would think that the institution should have no say over the private decisions of the employees. As a practical matter where there are many doctors and hospitals, accommodation is OK, but it should never go so far as to prevent the provision of medical services. It is OK to tell abortion clinics to have hospital-like facilities, but if only hospitals can afford those facilities, then as far as I am concerned, at least one hospital in each market should have to provide the facilities. When a person runs for public office, we expect that person to put aside his or her religious views in making decisions. I would say that it is the same with doctors. But I know that is impractical, so we should come down hard on the implementation of that idea where there are no other providers available. The religion clauses of the Constitution often pose difficult issues that defy doctrinal resolution. But in the case of abortion, contraception etc. we can have harmonious relations if individuals are free to choose and no one tries to impose religious views on others. For the most there would be no problems if everyone would mind his/her own business. Also, while I used the word, "Catholic," the above is not limited to Catholics but should apply to anyone with strongly held personal views not shared by others. And it is end-of-life care and treatment derived from stem cells that concern me as well. Jon ___ 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.
