Contraceptives objected to by claimants in contraception mandate claims

[hamilton02]

For those interested, the following is what I have been able to figure out with 
respect to what medications
each of the challengers to the contraception mandate object to.  Korte's 
objections are the broadest.
Hobby Lobby and Conestoga Woods' objections are medications solely for females. 
 


Hobby Lobby (10th Cir), cert granted
Plan B
Ella
IUDs


Conestoga Wood (3d Cir), cert granted
Plan B
Ella


Korte (7th Cir)
Plan B
Ella
"All FDA-approved contraceptive methods, sterilization procedures, and patient 
education and counseling related to 
such procedures.”








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


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7 questions about contraception mandate

[Rev. Nate Walker]

Dear Colleagues,

Thank you for this important discussion about the contraception
mandate. I have a few interconnected questions (legal, religious, and
political) that I’d like to explore over a conference call scheduled
for Friday, December 6, 2013 at 12 noon EST. If you are interested in
participating in this collegial discussion, please send me an email at
nathan_wal...@mail.harvard.edu. I’ll reply with the 800–number and
participant code.

In the mean time, here are my seven questions.


***
1. At what level of indirectness?

The mandate currently requires that for-profit corporations offer
health insurance to their employees, including coverage of
contraception. Tom Berg clarifies that Hobby Lobby and Conestoga
“object only to certain medicines/methods that they believe cause
abortions of fertilized embryos.” Doug Laycock clarifies that these
plaintiffs are not opposed to the pill.

In this context, Eugene Volokh recommends that the government should
offer an alternate least-restrictive option. Specifically, “to have
the government offer such a plan, which employees could buy from the
government (or from some other entity), without the employer being
involved.”

Would not the objecting business owners and their corporations still
be indirectly subsidizing (twice) something they object to by
financially supporting the very government that offers and administers
contraception coverage? How effective is this strategy if their
individual and corporate tax dollars are still used to indirectly hire
a government to subsidize/administer activity that offends their
religion?

At what level of indirectness should one be granted conscientious
objector status? Where does it end? The argument that there is an even
more least-restrictive means to achieve the compelling state interest
seems like a slippery slope.


***
2. Registering as conscientious objectors?

When a government drafts a religious objector to serve in the military
and mandates the non-violent citizen to kill a foreigner, the burden
rests on the citizen to have previously registered as a conscientious
objector. (I have a hundred+ page document claiming my conscientious
objector status just in case there is another draft.) Will for profit
corporations, or at least the owners of the corporations, have to do
the same and preemptively document their conscientious objections? If
not, why?

This is a distinct legal process from, say, Henry David Thoreau
refusing to pay taxes in protest against indirectly subsidizing the
Mexican–American war. Is it not the role of Hobby Lobby and other
corporations to demonstrate that the burden is equal to or more
substantial than the government forcing a non-violent citizen to kill
another human being for one’s country?

Is the direct killing argument the basis of the objection to
indirectly subsidizing abortifacients? If so, is not such a claim a
religious/ethical opinion and not a medical fact? The medical
community and our current legal system routinely reject the claim that
an abortifacient equates to murder. How can an opinion or belief about
indirect subsidies of abortifacients be equated to the government
directly putting a weapon in the hands of non-violent citizens and
mandating them to kill for their country?

This equation grossly diminishes the significance of the conscientious
objector status, one that if claimed, would require years of
documented objection and pre-certified recognition by the state. Have
Hobby Lobby and Conestoga prepared such pre-certified conscientious
objector documents?

The argument about indirect subsidies of abortifacients brings up
another contradiction.


***
3. Which is it: direct or indirect?

Owners of Hobby Lobby, and those currently seeking exemptions, have
historically claimed that when parents use school vouchers, the state
does not, indirectly, subsidize private religious schools. The Hobby
Lobby owners and their supporters now claim that when the state
mandates insurance coverage for contraception, their corporations are,
indirectly, subsidizing sin. In one arena, these groups argue that
indirect subsidies are constitutional. In another they claim indirect
subsidies are unconstitutional. Which is it?

Is it not in the best (political) interest of these groups to stay on
message and consistently argue that “indirectness” does not equal
“subsidize”?


***
4. Whose freedom?

The Affordable Care Act currently exempts an organization from the
mandate if it “has the inculcation of religious values as its purpose;
primarily employs… and serves persons who share its religious tenets;
and is recognized by the IRS as a religious non-profit organization.”
The administration has therefore defined the least-restrictive means
as issuing exemptions to those religious non-profits that meet this
definition.

This brings up a set of other questions. Whose religious liberties are
being privileged when attempting to exempt religious owners of
for-profit corporations? The CEOs? The

RE: Contraception Mandate

[Alan Brownstein]

I have a lot of trouble with the argument that religious accommodations that 
effectively deny third parties government-mandated benefits to which they are 
otherwise entitled are not subject to Establishment Clause review. It is true 
that the government doesn’t have to protect anyone against employment 
discrimination and can decide how far it wants to extend such protection. It is 
also true that the government isn’t required to protect all people all the time 
against crimes like assault and battery (See Deshaney) or torts like conversion 
(See Flagg Brothers). But surely an exemption that allows religious individuals 
to assault third parties or commandeer their property violates the 
Establishment Clause.

I agree that the accommodation upheld in Amos burdened the employee who lost 
his job. I think the Court’s cases recognizing some Establishment Clause limit 
on accommodations involve some implied balancing. Implied balancing is 
necessary to determine whether an accommodation goes too far in burdening third 
parties and whether the accommodation does not impermissibly favor certain 
faiths over others. That’s one of the reasons I think Smith is unpersuasive 
when it rejects free exercise claims against neutral laws of general 
applicability in order to avoid subjective judicial balancing. When the job of 
granting accommodations is assigned to the legislature, court’s will have to 
engage in the same kind of balancing that they avoid in Free Exercise cases 
under Smith when they adjudicate Establishment Clause challenges to the 
accommodation because it allegedly impermissibly burdens third parties or 
favors certain religions over others.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 9:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

I do indeed think so.  The government doesn’t have to extend a 
government-mandated benefit to everyone; Title VII protections, for instance, 
aren’t extended to employees of small businesses, and are otherwise limited in 
various ways.  Indeed, a law can’t discriminate based on a beneficiary’s 
religion in extending such a benefit (except perhaps when the benefit is itself 
a religious accommodation).  But I don’t think that there should be an 
Establishment Clause  problem with a law saying that, for instance, those 
tenants who want to rent from religious objector landlords don’t get the 
protections of marital status discrimination law, those employees who work for 
religious vegetarian landlords don’t get the protections of the meaty lunch 
program, or those employees who work for employers who object to paying for 
contraceptives or abortifacents don’t get the protections of the relevant 
health care insurance program.

As to Cutter, the only way I can see of reconciling it with 
Amos is by not reading Thornton too broadly.  The accommodation in Amos did 
not, after all, at all “take adequate account of the burdens a requested 
accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as 
included denial of a government-mandated benefit.  The employee in Amos was 
seriously burdened indeed, by loss of his job, and not just of some benefit 
under the health insurance coverage.  That the employer was a nonprofit, after 
all, did not eliminate or even diminish the burden on the employees; employees 
of nonprofits are just as burdened by loss of a job as employees of 
for-profits.  And the law in Amos did not call on courts to “take adequate 
account of the burden.”

Eugene

Alan Brownstein writes:

Eugene, are you arguing that an exemption that effectively denies a class of 
individuals a government-mandated benefit that there are otherwise entitled to 
receive can never violate the Establishment Clause under Amos, Thornton, and 
Cutter? I think that requires courts to engage in an unhelpful inquiry trying 
to distinguish between benefits and burdens (does an exemption from laws 
requiring that employers provide employees a safe working environment impose a 
burden on workers or deny them a government-mandated benefit).

I think Cutter clearly suggests that exemptions would be unacceptable, not 
because they give the force of law to a believer’s action, but because of “the 
burdens a requested accommodation may impose on non-beneficiaries” and because 
an accommodation would “impose unjustified burdens on other institutionalized 
persons, or jeopardize the effective functioning of an institution.”

I agree that the mere fact that some burden is imposed or benefit denied does 
not demonstrate that an exemption violates the Establishment Clause. But 
accommodations that either impose direct burdens or interfere with mandated 
benefits can violate the Establishment Clause if they go too far.

Alan Brownstein

___
To 

RE: Contraception Mandate

[Volokh, Eugene]

I do indeed think so.  The government doesn’t have to extend a 
government-mandated benefit to everyone; Title VII protections, for instance, 
aren’t extended to employees of small businesses, and are otherwise limited in 
various ways.  Indeed, a law can’t discriminate based on a beneficiary’s 
religion in extending such a benefit (except perhaps when the benefit is itself 
a religious accommodation).  But I don’t think that there should be an 
Establishment Clause  problem with a law saying that, for instance, those 
tenants who want to rent from religious objector landlords don’t get the 
protections of marital status discrimination law, those employees who work for 
religious vegetarian landlords don’t get the protections of the meaty lunch 
program, or those employees who work for employers who object to paying for 
contraceptives or abortifacents don’t get the protections of the relevant 
health care insurance program.

As to Cutter, the only way I can see of reconciling it with 
Amos is by not reading Thornton too broadly.  The accommodation in Amos did 
not, after all, at all “take adequate account of the burdens a requested 
accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as 
included denial of a government-mandated benefit.  The employee in Amos was 
seriously burdened indeed, by loss of his job, and not just of some benefit 
under the health insurance coverage.  That the employer was a nonprofit, after 
all, did not eliminate or even diminish the burden on the employees; employees 
of nonprofits are just as burdened by loss of a job as employees of 
for-profits.  And the law in Amos did not call on courts to “take adequate 
account of the burden.”

Eugene

Alan Brownstein writes:

Eugene, are you arguing that an exemption that effectively denies a class of 
individuals a government-mandated benefit that there are otherwise entitled to 
receive can never violate the Establishment Clause under Amos, Thornton, and 
Cutter? I think that requires courts to engage in an unhelpful inquiry trying 
to distinguish between benefits and burdens (does an exemption from laws 
requiring that employers provide employees a safe working environment impose a 
burden on workers or deny them a government-mandated benefit).

I think Cutter clearly suggests that exemptions would be unacceptable, not 
because they give the force of law to a believer’s action, but because of “the 
burdens a requested accommodation may impose on non-beneficiaries” and because 
an accommodation would “impose unjustified burdens on other institutionalized 
persons, or jeopardize the effective functioning of an institution.”

I agree that the mere fact that some burden is imposed or benefit denied does 
not demonstrate that an exemption violates the Establishment Clause. But 
accommodations that either impose direct burdens or interfere with mandated 
benefits can violate the Establishment Clause if they go too far.

Alan Brownstein

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 2:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

I don’t see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don’t think that somehow constitutes the employer 
discriminating based on religion against people who don’t share his beliefs.

Now say that the government requires employers to buy lunch for 
their employees, and include meat (since that’s what the government sees as 
part of a healthy, balanced lunch), but has an exemption for religious 
employers.  I don’t think that would somehow violate the Establishment Clause, 
on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t impose any 
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a 
believer’s action (Amos’s explanation of Thornton).  It would simply -- like in 
Amos or in Cutter, which are indeed relevant for purposes of understanding the 
boundaries of Thornton -- exempt the employer from a government-imposed 
requirement, and indeed a requirement that (more so than in Amos) involves a 
government-imposed burden on the employer’s religious practice.  That the 
employees no longer get a government-mandated benefit does not make the 
exemption unconstitutional.

So I don’t think there’s an Establishment Clause problem with 
such exemptions, and likewise there wouldn’t be with any such exemption 
recognized under RFRA.  To be sure, this doesn’t tell us whether the exemption 
should still be denied, on the theory that the denial is necessary to serve a 
compelling government interest.  But that’s a separate question from whether 
the exemption would b

RE: Contraception Mandate

[Volokh, Eugene]

I agree with Michael, but there's a deeper point here, I think. 
 The employers in Hobby Lobby aren't seeking an order that employees not use 
contraception - they're just seeking to have employees pay it out of their own 
pockets.  Likewise, the employers in my hypothetical case aren't seeking an 
order that employees not eat meat - they're just seeking to have employees pay 
for the meat out of their own pockets.

As a result, the "burden" on employees in both scenarios is 
pretty much the same: the employees have to pay some not vast but substantial 
amount of money out of their own pockets for something that, absent an 
exemption, would be paid by the employer.  If I'm right that an exemption for 
religious objectors from the "you must buy meat for your employees' lunches" 
requirement wouldn't violate the Establishment Clause, then an exemption for 
religious objectors from the "you must buy coverage for contraceptives or 
abortifacents for your employees" wouldn't violate the Establishment Clause, 
either.

I should note that whether there's a compelling interest in 
denying such an exemption, such that the Court ought not recognize such an 
exemption under RFRA, is a separate matter.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Tuesday, November 26, 2013 3:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate

Obviously, I'm not degrading the interest in contraception; I just think saying 
"this isn't lunch" is a weird thing to say given the importance of food.

On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:
Marci--

Would you think that a mandate that all (private, for-profit) schools buy lunch 
for their students be more compelling than this case?  In both cases, the third 
parties can buy food or contraception outside of the employer/school 
relationship?
You say "This isn't lunch-- it is medical treatment for women."
In essence, which is more essential-- free food or free contraception?

Michael

On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
This isn't lunch-- it is medical treatment for women.  (Contraceptive meds may 
work against some Catholics' beliefs but they are often taken for 
non-contraceptive reasons, so the contraception label for this is 
religio-centric).

And women have a civil right against these employers not to be discriminated 
against on gender or religion.  A benefit plan that carves out medical 
treatment based on the employer's religious beliefs and that only applies to 
women is discriminatory.

Let's say that the employer believes that all women should have their heads 
covered because of religious belief .  Again, discrimination based on religion 
and gender in violation of Title VII.

Or how about an employer who believes women belong in the home taking care of 
their kids, and therefore scales salary to deincentivize women and drive them 
from the workplace.   ( the answer that these employers wouldn't hire women is 
a factual dodge, that avoids the legal issue). Same problem

Or let's say that a religious company owner learns that an employee had an 
abortion (which is consistent w her religious beliefs) and fires her for doing 
what he believes is murder.   Discrimination on religion and gender.

In each of these cases I think the govt has a compelling interest in protecting 
women against such discrimination in these workplaces and that there is no less 
restrictive means than requiring cos covered by Title VII to cover women's 
health care, period.  Given that the woman makes an intervening choice whether 
to use it, burden on the employer is de minimis.
(I know that there is a claim that the very payment for the plan that includes 
contraception violates beliefs but the question is LRM and this is it)

Brad throws in a red herring -- the believer need not choose to have a 
for-profit company with over 50 employees.  Heading up a nonprofit or a smaller 
company escapes these civil rights.   There is no constitutional right to make 
money and engage in gender and religious discrimination.


Having said all that, the problem here is really RFRA, but I have written 
extensively on its shortcomings and won't belabor the point here.

Marci


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
I don't see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don't t

RE: Contraception Mandate

[Volokh, Eugene]

(1) I agree with Alan, and think this is not an easy case, partly for that 
reason.



(2)My point about the supplemental insurance came in response to Marci's 
Jehovah's Witnesses hypothetical.  That insurance is likely to be cheap, 
because the likelihood of needing blood transfusions is so low.  I agree 
entirely that supplemental coverage for contraceptives is likely to be much 
more expensive, because the likelihood of using it is going to be much higher.



(3)I don't think TWA v. Hardison and Thornton v. Caldor stand for the 
proposition that exemptions from government-imposed burdens violate the 
Establishment Clause when they deny government-mandated benefits to third 
parties.  Rather, those cases involved government mandates imposed on private 
parties (there, employers).



(4)This having been said, while I don't think there's any Establishment 
Clause barrier to an exemption from the contraceptive mandate, I agree that 
whether there's a compelling interest in providing contraceptive coverage to 
employees is a difficult question, partly because no-one really knows what 
constitutes a compelling interest.  Likewise, whether there are less 
restrictive alternatives is also a difficult question, partly because of the 
issue that Alan raises.

Eugene




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Tuesday, November 26, 2013 5:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

The answer has to lie somewhere in between these two stark alternatives, 
doesn't it? It can't be that the cost to the government (the public) in 
mitigating or avoiding the harm caused by granting an exemption can never be 
high enough to be compelling. But it also can't (or shouldn't) be that any 
accommodation that costs third parties or the government (the public) more than 
a de minimis amount violates the Establishment Clause.

Alan

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, November 26, 2013 4:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate

But the government is under no obligation to provide contraceptive coverage for 
women even if it loses these two cases in the Supreme Court.  And if it loses 
them, the female employees and family members who lose this coverage will 
suffer (in full) the third party harms that Nelson, Micah, Fred and others are 
discussing.  You can't measure the scope of those harms by some hypothetical 
measure that may never get enacted.  So the measure of their harm is the market 
cost of buying the contraceptives or contraceptive insurance (is there such a 
product?).  That is, on average, far more than the de minimis cost that TWA v. 
Hardison says is the (Establishment Clause) limit that Title VII can be allowed 
to impose on employers.  Avoiding that third party harm IS the compelling 
interest in the case.  Allowing hypothetical government provided substitutes -- 
e.g., if XYZ Company won't hire women, the government can hire them -- will 
mean the government can never win a RFRA case once substantial burden has been 
shown.  That can't be right.

On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
The less restrictive means would be to have the government 
offer such a plan, which employees could buy from the government (or from some 
other entity), without the employer being involved.  After all, until recently, 
employers weren't required to provide insurance at all, though there were 
substantial market pressures and tax incentives for them to do so.  The 
alternative would simply retain that pre-ACA system for the tiny corner of 
health care spending involved in blood transfusions for employees of companies 
that oppose such transfusions.

Now I certainly wouldn't say that such an alternative is 
constitutionally mandated, and I wouldn't relish the prospect of judges 
deciding, as a constitutional matter and with no possibility of legislative 
override, whether such an alternative would be too expensive or burdensome on 
the government.  (That's one reason I support Employment Division v. Smith as a 
view of the Free Exercise Clause.)  But RFRA is a Congressional judgment that 
judges should generally engage in 
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to 
Congressional authorization and with the possibility of a Congressional 
override.  So under RFRA, courts would have to consider whether this 
alternative system of funding blood transfusions is indeed a less restrictive 
means of serving a compelling government interest.

Eugene

RE: Contraception Mandate

[Alan Brownstein]

The answer has to lie somewhere in between these two stark alternatives, 
doesn't it? It can't be that the cost to the government (the public) in 
mitigating or avoiding the harm caused by granting an exemption can never be 
high enough to be compelling. But it also can't (or shouldn't) be that any 
accommodation that costs third parties or the government (the public) more than 
a de minimis amount violates the Establishment Clause.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, November 26, 2013 4:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate

But the government is under no obligation to provide contraceptive coverage for 
women even if it loses these two cases in the Supreme Court.  And if it loses 
them, the female employees and family members who lose this coverage will 
suffer (in full) the third party harms that Nelson, Micah, Fred and others are 
discussing.  You can't measure the scope of those harms by some hypothetical 
measure that may never get enacted.  So the measure of their harm is the market 
cost of buying the contraceptives or contraceptive insurance (is there such a 
product?).  That is, on average, far more than the de minimis cost that TWA v. 
Hardison says is the (Establishment Clause) limit that Title VII can be allowed 
to impose on employers.  Avoiding that third party harm IS the compelling 
interest in the case.  Allowing hypothetical government provided substitutes -- 
e.g., if XYZ Company won't hire women, the government can hire them -- will 
mean the government can never win a RFRA case once substantial burden has been 
shown.  That can't be right.

On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
The less restrictive means would be to have the government 
offer such a plan, which employees could buy from the government (or from some 
other entity), without the employer being involved.  After all, until recently, 
employers weren't required to provide insurance at all, though there were 
substantial market pressures and tax incentives for them to do so.  The 
alternative would simply retain that pre-ACA system for the tiny corner of 
health care spending involved in blood transfusions for employees of companies 
that oppose such transfusions.

Now I certainly wouldn't say that such an alternative is 
constitutionally mandated, and I wouldn't relish the prospect of judges 
deciding, as a constitutional matter and with no possibility of legislative 
override, whether such an alternative would be too expensive or burdensome on 
the government.  (That's one reason I support Employment Division v. Smith as a 
view of the Free Exercise Clause.)  But RFRA is a Congressional judgment that 
judges should generally engage in 
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to 
Congressional authorization and with the possibility of a Congressional 
override.  So under RFRA, courts would have to consider whether this 
alternative system of funding blood transfusions is indeed a less restrictive 
means of serving a compelling government interest.

Eugene
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Re: Contraception Mandate

[Michael Worley]

Right, but we're discussing constitutionality, so what Title VII doesn't
say doesn't constrain my question:

Were Title VII amended to require private, for-profit schools to give food,
would that be a higher "compelling interest" than the interest in
contraception?


On Tue, Nov 26, 2013 at 5:13 PM, Marci Hamilton  wrote:

> There is nothing in title VII that governs all of the companies involved
> here that involves food, lunch, or children. These issues are about
> adult women employees who are protected by Title VII from employers who
> make religion a prerequisite to employment or who, in my view, craft
> benefits and/or salaries based on religion or gender.
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Nov 26, 2013, at 6:59 PM, Michael Worley  wrote:
>
> Obviously, I'm not degrading the interest in contraception; I just think
> saying "this isn't lunch" is a weird thing to say given the importance of
> food.
>
>
> On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley wrote:
>
>> Marci--
>>
>> Would you think that a mandate that all (private, for-profit) schools buy
>> lunch for their students be more compelling than this case?  In both cases,
>> the third parties can buy food or contraception outside of the
>> employer/school relationship?
>> You say "This isn't lunch-- it is medical treatment for women."
>> In essence, which is more essential-- free food or free contraception?
>>
>> Michael
>>
>>
>> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton wrote:
>>
>>> This isn't lunch-- it is medical treatment for women.  (Contraceptive
>>> meds may work against some Catholics' beliefs but they are often taken for
>>> non-contraceptive reasons, so the contraception label for this is
>>> religio-centric).
>>>
>>> And women have a civil right against these employers not to be
>>> discriminated against on gender or religion.  A benefit plan that carves
>>> out medical treatment based on the employer's religious beliefs and that
>>> only applies to women is discriminatory.
>>>
>>> Let's say that the employer believes that all women should have their
>>> heads covered because of religious belief .  Again, discrimination based on
>>> religion and gender in violation of Title VII.
>>>
>>> Or how about an employer who believes women belong in the home taking
>>> care of their kids, and therefore scales salary to deincentivize women and
>>> drive them from the workplace.   ( the answer that these employers wouldn't
>>> hire women is a factual dodge, that avoids the legal issue). Same problem
>>>
>>> Or let's say that a religious company owner learns that an employee had
>>> an abortion (which is consistent w her religious beliefs) and fires her for
>>> doing what he believes is murder.   Discrimination on religion and gender.
>>>
>>> In each of these cases I think the govt has a compelling interest in
>>> protecting women against such discrimination in these workplaces and that
>>> there is no less restrictive means than requiring cos covered by Title VII
>>> to cover women's health care, period.  Given that the woman makes an
>>> intervening choice whether to use it, burden on the employer is de minimis.
>>> (I know that there is a claim that the very payment for the plan that
>>> includes contraception violates beliefs but the question is LRM and this is
>>> it)
>>>
>>> Brad throws in a red herring -- the believer need not choose to have a
>>> for-profit company with over 50 employees.  Heading up a nonprofit or a
>>> smaller company escapes these civil rights.   There is no constitutional
>>> right to make money and engage in gender and religious discrimination.
>>>
>>>
>>> Having said all that, the problem here is really RFRA, but I have
>>> written extensively on its shortcomings and won't belabor the point here.
>>>
>>> Marci
>>>
>>>
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton
>>>
>>>
>>>
>>> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" 
>>> wrote:
>>>
>>> I don’t see that at all.  Say the government requires
>>> employers to buy lunch for their employees, and a religiously vegetarian
>>> employer orders only vegetarian food.  I don’t think that somehow
>>> constitutes the employer discriminating based on religion against people
>>> who don’t share his beliefs.
>>>
>>>
>>>
>>> Now say that the government requires employers to buy
>>> lunch for their employees, and include meat (since that’s what the
>>> government sees as part of a healthy, balanced lunch), but has an exemption
>>> for religious employers.  I don’t think that would somehow violate the
>>> Establishment Clause, on a Thornton theory.  Unlike in Thornton, the
>>> exemption wouldn’t impose any legal coercion on an objecting nonbeliever,
>>> by “giv[ing] the force of law” to a believer’s action (Amos’s explanation
>>> of Thornton).  It would sim

Re: Contraception Mandate

[Ira Lupu]

But the government is under no obligation to provide contraceptive coverage
for women even if it loses these two cases in the Supreme Court.  And if it
loses them, the female employees and family members who lose this coverage
will suffer (in full) the third party harms that Nelson, Micah, Fred and
others are discussing.  You can't measure the scope of those harms by some
hypothetical measure that may never get enacted.  So the measure of their
harm is the market cost of buying the contraceptives or contraceptive
insurance (is there such a product?).  That is, on average, far more than
the de minimis cost that TWA v. Hardison says is the (Establishment Clause)
limit that Title VII can be allowed to impose on employers.  Avoiding that
third party harm IS the compelling interest in the case.  Allowing
hypothetical government provided substitutes -- e.g., if XYZ Company won't
hire women, the government can hire them -- will mean the government can
never win a RFRA case once substantial burden has been shown.  That can't
be right.


On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene  wrote:

> The less restrictive means would be to have the government
> offer such a plan, which employees could buy from the government (or from
> some other entity), without the employer being involved.  After all, until
> recently, employers weren’t required to provide insurance at all, though
> there were substantial market pressures and tax incentives for them to do
> so.  The alternative would simply retain that pre-ACA system for the tiny
> corner of health care spending involved in blood transfusions for employees
> of companies that oppose such transfusions.
>
>
>
> Now I certainly wouldn’t say that such an alternative is
> constitutionally mandated, and I wouldn’t relish the prospect of judges
> deciding, as a constitutional matter and with no possibility of legislative
> override, whether such an alternative would be too expensive or burdensome
> on the government.  (That’s one reason I support Employment Division v.
> Smith as a view of the Free Exercise Clause.)  But RFRA is a Congressional
> judgment that judges should generally engage in
> least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant
> to Congressional authorization and with the possibility of a Congressional
> override.  So under RFRA, courts would have to consider whether this
> alternative system of funding blood transfusions is indeed a less
> restrictive means of serving a compelling government interest.
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-bounces+volokh=law.ucla@lists.ucla.edu [mailto:
> religionlaw-bounces+volokh=law.ucla@lists.ucla.edu] *On Behalf Of *
> hamilto...@aol.com
> *Sent:* Tuesday, November 26, 2013 2:29 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Contraception Mandate
>
>
>
> I'll wait for others to weigh in on the first, but with respect to the
> second,
>
>
>
> I thought the argument was that the employer can't be part of a system
> that involves acts by others that violate his religious beliefs.
>
> How does the cheap supplementary plan for transfusions solve the Jehovahs
> Witness's being part of a system that
>
> involves acts that violate his religious beliefs?  Is Hobby Lobby willing
> to provide a supplementary, inexpensive plan for contraception?
>
>
>
>
>
> 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
>
> <https://www.facebook.com/professormarciahamilton?fref=ts>   
> <https://twitter.com/marci_hamilton>
>
>
>
>
> -Original Message-
> From: Volokh, Eugene 
> To: Law & Religion issues for Law Academics 
> Sent: Tue, Nov 26, 2013 5:21 pm
> Subject: RE: Contraception Mandate
>
>   I’m not Brad, but I thought I’d put my two cents’ worth in:
>
>
>
> Brad-Is it your view that for-profit companies over 50 employees
> (those affected here), who are subject to Title VII, and may not
> discriminate on the basis of religion or gender,
>
> can tailor their salary and benefit plans according to religious beliefs
> and gender?
>
>
>
>   I should think that, whether the company is for-profit or
> non-profit (and corporation or sole proprietorship), the ban on
> discrimination might well impose a substantial burden on the employer -- if
> the employer feels a religious obligation to discriminate -- but would be
> upheld under strict scrutiny, no?  But I take it that the case for the
> contraception 

Re: Contraception Mandate

[Marci Hamilton]

There is nothing in title VII that governs all of the companies involved here 
that involves food, lunch, or children. These issues are about adult women 
employees who are protected by Title VII from employers who make religion a 
prerequisite to employment or who, in my view, craft benefits and/or salaries 
based on religion or gender.   

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 26, 2013, at 6:59 PM, Michael Worley  wrote:

> Obviously, I'm not degrading the interest in contraception; I just think 
> saying "this isn't lunch" is a weird thing to say given the importance of 
> food.
> 
> 
> On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley  wrote:
>> Marci--
>> 
>> Would you think that a mandate that all (private, for-profit) schools buy 
>> lunch for their students be more compelling than this case?  In both cases, 
>> the third parties can buy food or contraception outside of the 
>> employer/school relationship?
>> You say "This isn't lunch-- it is medical treatment for women."
>> In essence, which is more essential-- free food or free contraception?
>> 
>> Michael
>> 
>> 
>> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton  wrote:
>>> This isn't lunch-- it is medical treatment for women.  (Contraceptive meds 
>>> may work against some Catholics' beliefs but they are often taken for 
>>> non-contraceptive reasons, so the contraception label for this is 
>>> religio-centric).   
>>> 
>>> And women have a civil right against these employers not to be 
>>> discriminated against on gender or religion.  A benefit plan that carves 
>>> out medical treatment based on the employer's religious beliefs and that 
>>> only applies to women is discriminatory.
>>> 
>>> Let's say that the employer believes that all women should have their heads 
>>> covered because of religious belief .  Again, discrimination based on 
>>> religion and gender in violation of Title VII.
>>> 
>>> Or how about an employer who believes women belong in the home taking care 
>>> of their kids, and therefore scales salary to deincentivize women and drive 
>>> them from the workplace.   ( the answer that these employers wouldn't hire 
>>> women is a factual dodge, that avoids the legal issue). Same problem
>>> 
>>> Or let's say that a religious company owner learns that an employee had an 
>>> abortion (which is consistent w her religious beliefs) and fires her for 
>>> doing what he believes is murder.   Discrimination on religion and gender.
>>> 
>>> In each of these cases I think the govt has a compelling interest in 
>>> protecting women against such discrimination in these workplaces and that 
>>> there is no less restrictive means than requiring cos covered by Title VII 
>>> to cover women's health care, period.  Given that the woman makes an 
>>> intervening choice whether to use it, burden on the employer is de minimis.
>>> (I know that there is a claim that the very payment for the plan that 
>>> includes contraception violates beliefs but the question is LRM and this is 
>>> it)
>>> 
>>> Brad throws in a red herring -- the believer need not choose to have a 
>>> for-profit company with over 50 employees.  Heading up a nonprofit or a 
>>> smaller company escapes these civil rights.   There is no constitutional 
>>> right to make money and engage in gender and religious discrimination.
>>> 
>>> 
>>> Having said all that, the problem here is really RFRA, but I have written 
>>> extensively on its shortcomings and won't belabor the point here.   
>>> 
>>> Marci
>>> 
>>> 
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton 
>>> 
>>> 
>>> 
>>> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene"  wrote:
>>> 
 I don’t see that at all.  Say the government requires 
 employers to buy lunch for their employees, and a religiously vegetarian 
 employer orders only vegetarian food.  I don’t think that somehow 
 constitutes the employer discriminating based on religion against people 
 who don’t share his beliefs.
 
  
 
 Now say that the government requires employers to buy 
 lunch for their employees, and include meat (since that’s what the 
 government sees as part of a healthy, balanced lunch), but has an 
 exemption for religious employers.  I don’t think that would somehow 
 violate the Establishment Clause, on a Thornton theory.  Unlike in 
 Thornton, the exemption wouldn’t impose any legal coercion on an objecting 
 nonbeliever, by “giv[ing] the force of law” to a believer’s action (Amos’s 
 explanation of Thornton).  It would simply -- like in Amos or in Cutter, 
 which are indeed relevant for purposes of understanding the boundaries of 
 Thornton -- exempt the employer from a government-imposed requirement, and 
 indeed a requirement that (more so than in Amos) involves a 
>>

Re: Contraception Mandate

[Michael Worley]

Obviously, I'm not degrading the interest in contraception; I just think
saying "this isn't lunch" is a weird thing to say given the importance of
food.


On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley  wrote:

> Marci--
>
> Would you think that a mandate that all (private, for-profit) schools buy
> lunch for their students be more compelling than this case?  In both cases,
> the third parties can buy food or contraception outside of the
> employer/school relationship?
> You say "This isn't lunch-- it is medical treatment for women."
> In essence, which is more essential-- free food or free contraception?
>
> Michael
>
>
> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton wrote:
>
>> This isn't lunch-- it is medical treatment for women.  (Contraceptive
>> meds may work against some Catholics' beliefs but they are often taken for
>> non-contraceptive reasons, so the contraception label for this is
>> religio-centric).
>>
>> And women have a civil right against these employers not to be
>> discriminated against on gender or religion.  A benefit plan that carves
>> out medical treatment based on the employer's religious beliefs and that
>> only applies to women is discriminatory.
>>
>> Let's say that the employer believes that all women should have their
>> heads covered because of religious belief .  Again, discrimination based on
>> religion and gender in violation of Title VII.
>>
>> Or how about an employer who believes women belong in the home taking
>> care of their kids, and therefore scales salary to deincentivize women and
>> drive them from the workplace.   ( the answer that these employers wouldn't
>> hire women is a factual dodge, that avoids the legal issue). Same problem
>>
>> Or let's say that a religious company owner learns that an employee had
>> an abortion (which is consistent w her religious beliefs) and fires her for
>> doing what he believes is murder.   Discrimination on religion and gender.
>>
>> In each of these cases I think the govt has a compelling interest in
>> protecting women against such discrimination in these workplaces and that
>> there is no less restrictive means than requiring cos covered by Title VII
>> to cover women's health care, period.  Given that the woman makes an
>> intervening choice whether to use it, burden on the employer is de minimis.
>> (I know that there is a claim that the very payment for the plan that
>> includes contraception violates beliefs but the question is LRM and this is
>> it)
>>
>> Brad throws in a red herring -- the believer need not choose to have a
>> for-profit company with over 50 employees.  Heading up a nonprofit or a
>> smaller company escapes these civil rights.   There is no constitutional
>> right to make money and engage in gender and religious discrimination.
>>
>>
>> Having said all that, the problem here is really RFRA, but I have written
>> extensively on its shortcomings and won't belabor the point here.
>>
>> Marci
>>
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" 
>> wrote:
>>
>> I don’t see that at all.  Say the government requires
>> employers to buy lunch for their employees, and a religiously vegetarian
>> employer orders only vegetarian food.  I don’t think that somehow
>> constitutes the employer discriminating based on religion against people
>> who don’t share his beliefs.
>>
>>
>>
>> Now say that the government requires employers to buy
>> lunch for their employees, and include meat (since that’s what the
>> government sees as part of a healthy, balanced lunch), but has an exemption
>> for religious employers.  I don’t think that would somehow violate the
>> Establishment Clause, on a Thornton theory.  Unlike in Thornton, the
>> exemption wouldn’t impose any legal coercion on an objecting nonbeliever,
>> by “giv[ing] the force of law” to a believer’s action (Amos’s explanation
>> of Thornton).  It would simply -- like in Amos or in Cutter, which are
>> indeed relevant for purposes of understanding the boundaries of Thornton --
>> exempt the employer from a government-imposed requirement, and indeed a
>> requirement that (more so than in Amos) involves a government-imposed
>> burden on the employer’s religious practice.  That the employees no longer
>> get a government-mandated benefit does not make the exemption
>> unconstitutional.
>>
>>
>>
>> So I don’t think there’s an Establishment Clause problem
>> with such exemptions, and likewise there wouldn’t be with any such
>> exemption recognized under RFRA.  To be sure, this doesn’t tell us whether
>> the exemption should still be denied, on the theory that the denial is
>> necessary to serve a compelling government interest.  But that’s a separate
>> question from whether the exemption would be outright unconstitutional.
>>
>>
>>
>> Eugene
>>
>>
>>
>> Marci wrote:

Re: Contraception Mandate

[Michael Worley]

Marci--

Would you think that a mandate that all (private, for-profit) schools buy
lunch for their students be more compelling than this case?  In both cases,
the third parties can buy food or contraception outside of the
employer/school relationship?
You say "This isn't lunch-- it is medical treatment for women."
In essence, which is more essential-- free food or free contraception?

Michael


On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton  wrote:

> This isn't lunch-- it is medical treatment for women.  (Contraceptive meds
> may work against some Catholics' beliefs but they are often taken for
> non-contraceptive reasons, so the contraception label for this is
> religio-centric).
>
> And women have a civil right against these employers not to be
> discriminated against on gender or religion.  A benefit plan that carves
> out medical treatment based on the employer's religious beliefs and that
> only applies to women is discriminatory.
>
> Let's say that the employer believes that all women should have their
> heads covered because of religious belief .  Again, discrimination based on
> religion and gender in violation of Title VII.
>
> Or how about an employer who believes women belong in the home taking care
> of their kids, and therefore scales salary to deincentivize women and drive
> them from the workplace.   ( the answer that these employers wouldn't hire
> women is a factual dodge, that avoids the legal issue). Same problem
>
> Or let's say that a religious company owner learns that an employee had an
> abortion (which is consistent w her religious beliefs) and fires her for
> doing what he believes is murder.   Discrimination on religion and gender.
>
> In each of these cases I think the govt has a compelling interest in
> protecting women against such discrimination in these workplaces and that
> there is no less restrictive means than requiring cos covered by Title VII
> to cover women's health care, period.  Given that the woman makes an
> intervening choice whether to use it, burden on the employer is de minimis.
> (I know that there is a claim that the very payment for the plan that
> includes contraception violates beliefs but the question is LRM and this is
> it)
>
> Brad throws in a red herring -- the believer need not choose to have a
> for-profit company with over 50 employees.  Heading up a nonprofit or a
> smaller company escapes these civil rights.   There is no constitutional
> right to make money and engage in gender and religious discrimination.
>
>
> Having said all that, the problem here is really RFRA, but I have written
> extensively on its shortcomings and won't belabor the point here.
>
> Marci
>
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene"  wrote:
>
> I don’t see that at all.  Say the government requires
> employers to buy lunch for their employees, and a religiously vegetarian
> employer orders only vegetarian food.  I don’t think that somehow
> constitutes the employer discriminating based on religion against people
> who don’t share his beliefs.
>
>
>
> Now say that the government requires employers to buy
> lunch for their employees, and include meat (since that’s what the
> government sees as part of a healthy, balanced lunch), but has an exemption
> for religious employers.  I don’t think that would somehow violate the
> Establishment Clause, on a Thornton theory.  Unlike in Thornton, the
> exemption wouldn’t impose any legal coercion on an objecting nonbeliever,
> by “giv[ing] the force of law” to a believer’s action (Amos’s explanation
> of Thornton).  It would simply -- like in Amos or in Cutter, which are
> indeed relevant for purposes of understanding the boundaries of Thornton --
> exempt the employer from a government-imposed requirement, and indeed a
> requirement that (more so than in Amos) involves a government-imposed
> burden on the employer’s religious practice.  That the employees no longer
> get a government-mandated benefit does not make the exemption
> unconstitutional.
>
>
>
> So I don’t think there’s an Establishment Clause problem
> with such exemptions, and likewise there wouldn’t be with any such
> exemption recognized under RFRA.  To be sure, this doesn’t tell us whether
> the exemption should still be denied, on the theory that the denial is
> necessary to serve a compelling government interest.  But that’s a separate
> question from whether the exemption would be outright unconstitutional.
>
>
>
> Eugene
>
>
>
> Marci wrote:
>
>
>
> The employer is insisting that employees accept benefit plans tailored to
> his religious beliefs, even though they accepted employment, which under
> federal law
>
> prohibits the employer from discriminating on the basis of religion (or
> gender).
>
> ___
>
> To post, send me

RE: Contraception Mandate

[Alan Brownstein]

Eugene, are you arguing that an exemption that effectively denies a class of 
individuals a government-mandated benefit that there are otherwise entitled to 
receive can never violate the Establishment Clause under Amos, Thornton, and 
Cutter? I think that requires courts to engage in an unhelpful inquiry trying 
to distinguish between benefits and burdens (does an exemption from laws 
requiring that employers provide employees a safe working environment impose a 
burden on workers or deny them a government-mandated benefit).

I think Cutter clearly suggests that exemptions would be unacceptable, not 
because they give the force of law to a believer’s action, but because of “the 
burdens a requested accommodation may impose on non-beneficiaries” and because 
an accommodation would “impose unjustified burdens on other institutionalized 
persons, or jeopardize the effective functioning of an institution.”

I agree that the mere fact that some burden is imposed or benefit denied does 
not demonstrate that an exemption violates the Establishment Clause. But 
accommodations that either impose direct burdens or interfere with mandated 
benefits can violate the Establishment Clause if they go too far.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 2:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

I don’t see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don’t think that somehow constitutes the employer 
discriminating based on religion against people who don’t share his beliefs.

Now say that the government requires employers to buy lunch for 
their employees, and include meat (since that’s what the government sees as 
part of a healthy, balanced lunch), but has an exemption for religious 
employers.  I don’t think that would somehow violate the Establishment Clause, 
on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t impose any 
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a 
believer’s action (Amos’s explanation of Thornton).  It would simply -- like in 
Amos or in Cutter, which are indeed relevant for purposes of understanding the 
boundaries of Thornton -- exempt the employer from a government-imposed 
requirement, and indeed a requirement that (more so than in Amos) involves a 
government-imposed burden on the employer’s religious practice.  That the 
employees no longer get a government-mandated benefit does not make the 
exemption unconstitutional.

So I don’t think there’s an Establishment Clause problem with 
such exemptions, and likewise there wouldn’t be with any such exemption 
recognized under RFRA.  To be sure, this doesn’t tell us whether the exemption 
should still be denied, on the theory that the denial is necessary to serve a 
compelling government interest.  But that’s a separate question from whether 
the exemption would be outright unconstitutional.

Eugene

Marci wrote:

The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or gender).
___
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: Contraception Mandate

[Marci Hamilton]

This isn't lunch-- it is medical treatment for women.  (Contraceptive meds may 
work against some Catholics' beliefs but they are often taken for 
non-contraceptive reasons, so the contraception label for this is 
religio-centric).   

And women have a civil right against these employers not to be discriminated 
against on gender or religion.  A benefit plan that carves out medical 
treatment based on the employer's religious beliefs and that only applies to 
women is discriminatory.

Let's say that the employer believes that all women should have their heads 
covered because of religious belief .  Again, discrimination based on religion 
and gender in violation of Title VII.

Or how about an employer who believes women belong in the home taking care of 
their kids, and therefore scales salary to deincentivize women and drive them 
from the workplace.   ( the answer that these employers wouldn't hire women is 
a factual dodge, that avoids the legal issue). Same problem

Or let's say that a religious company owner learns that an employee had an 
abortion (which is consistent w her religious beliefs) and fires her for doing 
what he believes is murder.   Discrimination on religion and gender.

In each of these cases I think the govt has a compelling interest in protecting 
women against such discrimination in these workplaces and that there is no less 
restrictive means than requiring cos covered by Title VII to cover women's 
health care, period.  Given that the woman makes an intervening choice whether 
to use it, burden on the employer is de minimis.
(I know that there is a claim that the very payment for the plan that includes 
contraception violates beliefs but the question is LRM and this is it)

Brad throws in a red herring -- the believer need not choose to have a 
for-profit company with over 50 employees.  Heading up a nonprofit or a smaller 
company escapes these civil rights.   There is no constitutional right to make 
money and engage in gender and religious discrimination.


Having said all that, the problem here is really RFRA, but I have written 
extensively on its shortcomings and won't belabor the point here.   

Marci


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene"  wrote:

> I don’t see that at all.  Say the government requires 
> employers to buy lunch for their employees, and a religiously vegetarian 
> employer orders only vegetarian food.  I don’t think that somehow constitutes 
> the employer discriminating based on religion against people who don’t share 
> his beliefs.
>  
> Now say that the government requires employers to buy lunch 
> for their employees, and include meat (since that’s what the government sees 
> as part of a healthy, balanced lunch), but has an exemption for religious 
> employers.  I don’t think that would somehow violate the Establishment 
> Clause, on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t 
> impose any legal coercion on an objecting nonbeliever, by “giv[ing] the force 
> of law” to a believer’s action (Amos’s explanation of Thornton).  It would 
> simply -- like in Amos or in Cutter, which are indeed relevant for purposes 
> of understanding the boundaries of Thornton -- exempt the employer from a 
> government-imposed requirement, and indeed a requirement that (more so than 
> in Amos) involves a government-imposed burden on the employer’s religious 
> practice.  That the employees no longer get a government-mandated benefit 
> does not make the exemption unconstitutional.
>  
> So I don’t think there’s an Establishment Clause problem with 
> such exemptions, and likewise there wouldn’t be with any such exemption 
> recognized under RFRA.  To be sure, this doesn’t tell us whether the 
> exemption should still be denied, on the theory that the denial is necessary 
> to serve a compelling government interest.  But that’s a separate question 
> from whether the exemption would be outright unconstitutional.
>  
> Eugene
>  
> Marci wrote:
>  
> The employer is insisting that employees accept benefit plans tailored to his 
> religious beliefs, even though they accepted employment, which under federal 
> law
> prohibits the employer from discriminating on the basis of religion (or 
> gender).   
> ___
> 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 Rel

RE: Contraception Mandate

[Volokh, Eugene]

That seems to me to be precisely the issue that the Court faced 
in United States v. Lee, and that lower courts have faced with regard to 
similar objectors -- granting such exemptions, especially given that they are 
sure to proliferate, would indeed substantially undermine the compelling 
government interest, and no less restrictive alternative is available.  "Unlike 
the situation presented in Wisconsin v. Yoder, it would be difficult to 
accommodate the comprehensive social security system with myriad exceptions 
flowing from a wide variety of religious beliefs."

But as O Centro made clear, not all statutory schemes would indeed be 
substantially undermined by grants of occasional exceptions.  RFRA requires 
courts to analyze each statutory scheme on its own terms, to determine how much 
accommodating religious objectors would indeed interfere with the scheme.  And 
I'm not at this point convinced (though I in principle could be) that 
accommodating religious objections to the ACA, especially given the ones we've 
seen so far, would create such interference.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, November 26, 2013 3:08 PM
To: Law Religion & Law List
Subject: Fwd: Contraception Mandate

Brad and Eugene,

How does compellingness analysis work when the government tortures people and 
kills civilians with drones and invades Iraq, all of which are against my 
religious beliefs and yet makes me pay for them?

This is a serious question.  I'm not a great fan of Smith (nor of RFRA, being 
more of a balancing kind a guy (not claiming to be balanced)), but how does a 
society function if there is such a unit veto?


Steve

--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org<http://iipsj.org/>
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

"The modern trouble is in a low capacity to believe in precepts which restrict 
and restrain private interests and desires."

Walter Lippmann





On Nov 26, 2013, at 5:44 PM, Brad Pardee 
mailto:bp51...@windstream.net>> wrote:


Marci,

I believe that there should be strict scrutiny before a person is compelled by 
law to choose between obeying their God and obeying their government.  Anything 
less gives the government a blank check to command or prohibit anything it 
wants to, and if that means you have to do what your God has prohibited or you 
cannot do what your God has commanded, that's just too bad.  Either chuck your 
God or face the consequences.

Your first example seems like an unlikely hypothetical because I don't know of 
any situation where providing equal salary and benfits regardless of religious 
beliefs or gender would force a person to act in opposition to the mandates of 
their faith.  There may be faiths that permit an employer to pay an employee 
less based on religion or gender, but I'm not familiar of any that would 
require an employer to do so.

I think that there is a compelling interest in the case of blood transfusions 
because that is a matter of life and death.  Contraception is not a life and 
death issue, and I can't think of any other way in which it would become a 
compelling interest.

Brad


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RE: Contraception Mandate

[Alan Brownstein]

Interesting piece. I think there have been and should be Establishment Clause 
constraints on the burdens religious accommodations can impose on third 
parties, but determining how and where this line should be drawn is no easy 
task.

I think there are three other distinctions or questions one might raise about 
extending RFRA exemptions to for-profit corporations.

First, religious liberty and freedom of conscience is primarily a dignitary 
right, not an instrumental right. Citizens United involved the instrumental 
goals of the free speech clause. Does the Constitution provide the same 
dignitary protection to corporations that it provides to human persons? See, 
e.g. Justice Rehnquist's dissent in PG & E v. PUC.

Second, I think the state would need to worry more about sham claims for 
religious exemptions from for-profit companies than religious non-profits. The 
religious identity of the great majority of religious non-profit corporations 
is not hard to determine. Religion is the core of their activity. The core 
activity of the great majority of for-profit corporation is making a profit. It 
will be harder to guarantee the genuineness of claims for religious exemptions 
in the for-profit sector. This is particularly true when the exemption will 
reduce the corporation's costs. While this concern might be more appropriately 
considered in the application of strict scrutiny review, one might argue that 
the case for not granting the exemption is sufficiently strong that we could 
adopt a prophylactic rule preventing for-profit companies from asserting the 
statutory right in the first place.

Third, we often require the recipients of exemptions to channel the cost of the 
obligation they need not obey toward some other public good or service that is 
consistent with their faith. See, e.g. conscientious objectors being required 
to perform alternative service. Would the case for an exemption be strengthened 
if the recipient of the exemption was required to direct whatever it saved from 
being relieved of the obligation to provide contraceptive coverage toward some 
other government identified public good?

I am inclined to agree with Tom that there are important arguments on both 
sides of this case.

Alan Brownstein



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 12:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting 
on today's cert. grant. We emphasize three differences between these cases and 
Citizens United, including the significant Establishment Clause ramifications 
of ruling in favor of the corporations here. We link to important work by Fred 
Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html
 

Nelson Tebbe
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Fwd: Contraception Mandate

[Steven Jamar]

Brad and Eugene,

How does compellingness analysis work when the government tortures people and 
kills civilians with drones and invades Iraq, all of which are against my 
religious beliefs and yet makes me pay for them?

This is a serious question.  I’m not a great fan of Smith (nor of RFRA, being 
more of a balancing kind a guy (not claiming to be balanced)), but how does a 
society function if there is such a unit veto?


Steve

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

"The modern trouble is in a low capacity to believe in precepts which restrict 
and restrain private interests and desires."

Walter Lippmann






On Nov 26, 2013, at 5:44 PM, Brad Pardee  wrote:

> Marci,
>  
> I believe that there should be strict scrutiny before a person is compelled 
> by law to choose between obeying their God and obeying their government.  
> Anything less gives the government a blank check to command or prohibit 
> anything it wants to, and if that means you have to do what your God has 
> prohibited or you cannot do what your God has commanded, that's just too bad. 
>  Either chuck your God or face the consequences.
>  
> Your first example seems like an unlikely hypothetical because I don't know 
> of any situation where providing equal salary and benfits regardless of 
> religious beliefs or gender would force a person to act in opposition to the 
> mandates of their faith.  There may be faiths that permit an employer to pay 
> an employee less based on religion or gender, but I'm not familiar of any 
> that would require an employer to do so.
>  
> I think that there is a compelling interest in the case of blood transfusions 
> because that is a matter of life and death.  Contraception is not a life and 
> death issue, and I can't think of any other way in which it would become a 
> compelling interest.
>  
> Brad
>  

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RE: Contraception Mandate

[Volokh, Eugene]

I don’t see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don’t think that somehow constitutes the employer 
discriminating based on religion against people who don’t share his beliefs.

Now say that the government requires employers to buy lunch for 
their employees, and include meat (since that’s what the government sees as 
part of a healthy, balanced lunch), but has an exemption for religious 
employers.  I don’t think that would somehow violate the Establishment Clause, 
on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t impose any 
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a 
believer’s action (Amos’s explanation of Thornton).  It would simply -- like in 
Amos or in Cutter, which are indeed relevant for purposes of understanding the 
boundaries of Thornton -- exempt the employer from a government-imposed 
requirement, and indeed a requirement that (more so than in Amos) involves a 
government-imposed burden on the employer’s religious practice.  That the 
employees no longer get a government-mandated benefit does not make the 
exemption unconstitutional.

So I don’t think there’s an Establishment Clause problem with 
such exemptions, and likewise there wouldn’t be with any such exemption 
recognized under RFRA.  To be sure, this doesn’t tell us whether the exemption 
should still be denied, on the theory that the denial is necessary to serve a 
compelling government interest.  But that’s a separate question from whether 
the exemption would be outright unconstitutional.

Eugene

Marci wrote:

The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or gender).
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RE: Contraception Mandate

[Brad Pardee]

Marci,

 

I believe that there should be strict scrutiny before a person is compelled
by law to choose between obeying their God and obeying their government.
Anything less gives the government a blank check to command or prohibit
anything it wants to, and if that means you have to do what your God has
prohibited or you cannot do what your God has commanded, that's just too
bad.  Either chuck your God or face the consequences.

 

Your first example seems like an unlikely hypothetical because I don't know
of any situation where providing equal salary and benfits regardless of
religious beliefs or gender would force a person to act in opposition to the
mandates of their faith.  There may be faiths that permit an employer to pay
an employee less based on religion or gender, but I'm not familiar of any
that would require an employer to do so.

 

I think that there is a compelling interest in the case of blood
transfusions because that is a matter of life and death.  Contraception is
not a life and death issue, and I can't think of any other way in which it
would become a compelling interest.

 

Brad

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Tuesday, November 26, 2013 4:04 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception Mandate

 

Brad-Is it your view that for-profit companies over 50 employees (those
affected here), who are subject to Title VII, and may not discriminate on
the basis of religion or gender, 

can tailor their salary and benefit plans according to religious beliefs and
gender?   

 

Separately, what is your view on whether a Jehovah's Witness for-profit
company can exclude blood transfusions as part of its benefits plan?  

 

 

Thanks 

 

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 <http://sol-reform.com/> 

 <https://www.facebook.com/professormarciahamilton?fref=ts>
<https://twitter.com/marci_hamilton>  

 

-Original Message-
From: Brad Pardee 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Nov 26, 2013 4:57 pm
Subject: RE: Contraception Mandate

There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.
 
Brad Pardee
 
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu?> ] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate
 
 
 
Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.
 
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 
 
Nelson Tebbe
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Please not

RE: Contraception Mandate

[Volokh, Eugene]

The less restrictive means would be to have the government 
offer such a plan, which employees could buy from the government (or from some 
other entity), without the employer being involved.  After all, until recently, 
employers weren’t required to provide insurance at all, though there were 
substantial market pressures and tax incentives for them to do so.  The 
alternative would simply retain that pre-ACA system for the tiny corner of 
health care spending involved in blood transfusions for employees of companies 
that oppose such transfusions.

Now I certainly wouldn’t say that such an alternative is 
constitutionally mandated, and I wouldn’t relish the prospect of judges 
deciding, as a constitutional matter and with no possibility of legislative 
override, whether such an alternative would be too expensive or burdensome on 
the government.  (That’s one reason I support Employment Division v. Smith as a 
view of the Free Exercise Clause.)  But RFRA is a Congressional judgment that 
judges should generally engage in 
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to 
Congressional authorization and with the possibility of a Congressional 
override.  So under RFRA, courts would have to consider whether this 
alternative system of funding blood transfusions is indeed a less restrictive 
means of serving a compelling government interest.

Eugene

From: religionlaw-bounces+volokh=law.ucla@lists.ucla.edu 
[mailto:religionlaw-bounces+volokh=law.ucla@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com
Sent: Tuesday, November 26, 2013 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception Mandate

I'll wait for others to weigh in on the first, but with respect to the second,

I thought the argument was that the employer can't be part of a system that 
involves acts by others that violate his religious beliefs.
How does the cheap supplementary plan for transfusions solve the Jehovahs 
Witness's being part of a system that
involves acts that violate his religious beliefs?  Is Hobby Lobby willing to 
provide a supplementary, inexpensive plan for contraception?


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<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Volokh, Eugene mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Tue, Nov 26, 2013 5:21 pm
Subject: RE: Contraception Mandate
  I’m not Brad, but I thought I’d put my two cents’ worth in:

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?

  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?

  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions).

  Eugene

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To subscr

Re: Contraception Mandate

[hamilton02]

Tom--


The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or 
gender).   


Amos is irrelevant as a religious organization has an exemption that a 
for-profit corporation does not have under Title VII.  


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





-Original Message-
From: Berg, Thomas C. 
To: religionlaw 
Sent: Tue, Nov 26, 2013 5:27 pm
Subject: RE: Contraception Mandate



Thanks, Nelson.  This is an interesting piece, and I respect the arguments on 
both sides.  But I have a couple of critical reactions:
 
1.  I wonder whether it's really helpful or effective to start by dismissing an 
argument as something "off the wall" that somehow, inexplicably, has gone 
mainstream.  The judges on both sides of this issue have advanced serious 
arguments, and I'm more inclined to concentrate on their merits.  Which you 
ultimately do (at least on some of the issues): so for me, at least, the "it's 
radical" pitch seemed simply to be preaching to the choir.
 
2.  The meat of your argument that for-profit corporations cannot exercise 
religion is that allowing their claims would raise Establishment Clause 
problems because of effects on employees.  But to me your argument here seems 
wrong, or at least far from clear.  For one thing, even if the Establishment 
Clause does play a role here, that may be a reason why wecan countenance 
certain free exercise claims by for-profit corporations.  If the Establishment 
Clause is available to limit the overreach of claims based on religious 
conscience—a unique limit on such claims and not on others—isn’t that a reason 
to bemore confident that in this context society would reach an accommodation 
that takes both important interests seriously?
 
  Moreover, you say that the fact that an exemption imposes costs on third 
parties is sufficient reason in itself to invalidate it under the Supreme 
Court's cases.  But that is not the law.  The Title VII exemption upheld 
unanimously in Amos could have been said to impose costs on employees.  But as 
Justice Brennan later explained in the Texas Monthly case, the exemption was 
upheld, "though it had some adverse effect on those holding or seeking 
employment with those organizations (if not on taxpayers generally), [because 
it] prevented potentially serious encroachments on protected religious 
freedoms."  489 U.S. at 18 n.8.  The Court treats third-party effects as 
something to be weighed against the seriousness of the “encroachment on 
religious freedom”—an approach that makes sense, given that pretty much any 
employment regulation, and therefore any exemption from it, could be said to 
affect third parties.  Your position, on the other hand, appears to be that 
"effect on third parties" is a reason to declare that no encroachment on 
religious freedom exists.  If that is so, how can there be accommodations for 
religious organizations?
 
  Second, you quote Thornton v. Caldor's statement that “[t]he First 
Amendment gives no one the right to insist that in pursuit of their own 
interests others must conform their conduct to his own religious necessities” 
(a principle that you say "matters here in a particularly powerful way").  Now, 
I understand and am actually rather sympathetic to the idea that the 
contraception mandate increases the ability of women employees with modest 
incomes to afford contraception.  But your phrasing does immediately trigger 
the response that the objecting employer is not, in fact, insisting that the 
employees “must conform their conduct to his own religious necessities.”  The 
employer is not insisting that employees refrain from using contraception, or 
from obtaining it by means other than the insurance coverage.  (In Thornton v. 
Caldor, note, the Connecticut law did actually require others to do something: 
the employer had to give the employee his Sabbath off, indeed without 
qualification or exception.)
 
There are significant questions here about the baselines from which we 
determine or measure “effects on others”: who is burdening whom, and which 
effect is more serious on the whole, in quality or quantity?  I acknowledge 
that there are also line-drawing issues that would arise were Hobby Lobby to 
win (the Jehovah’s Witness example that Marci raises, for example).  But I 
don’t think those questions are answered simply by invoking the fact that 
exempting certain employers has some effect on employees as compared with 
regulating those employers.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
Universi

Re: Contraception Mandate

[hamilton02]

I'll wait for others to weigh in on the first, but with respect to the second, 


I thought the argument was that the employer can't be part of a system that 
involves acts by others that violate his religious beliefs.  
How does the cheap supplementary plan for transfusions solve the Jehovahs 
Witness's being part of a system that 
involves acts that violate his religious beliefs?  Is Hobby Lobby willing to 
provide a supplementary, inexpensive plan for contraception?  




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





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Tue, Nov 26, 2013 5:21 pm
Subject: RE: Contraception Mandate




  I’m not Brad, but I thought I’d put my two cents’ worth in:
 
Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender, 

can tailor their salary and benefit plans according to religious beliefs and 
gender?   
 
  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

 

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?  
 
  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions). 
 
  Eugene



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RE: Contraception Mandate

[Berg, Thomas C.]

Thanks, Nelson.  This is an interesting piece, and I respect the arguments on 
both sides.  But I have a couple of critical reactions:



1.  I wonder whether it's really helpful or effective to start by dismissing an 
argument as something "off the wall" that somehow, inexplicably, has gone 
mainstream.  The judges on both sides of this issue have advanced serious 
arguments, and I'm more inclined to concentrate on their merits.  Which you 
ultimately do (at least on some of the issues): so for me, at least, the "it's 
radical" pitch seemed simply to be preaching to the choir.



2.  The meat of your argument that for-profit corporations cannot exercise 
religion is that allowing their claims would raise Establishment Clause 
problems because of effects on employees.  But to me your argument here seems 
wrong, or at least far from clear.  For one thing, even if the Establishment 
Clause does play a role here, that may be a reason why we can countenance 
certain free exercise claims by for-profit corporations.  If the Establishment 
Clause is available to limit the overreach of claims based on religious 
conscience-a unique limit on such claims and not on others-isn't that a reason 
to be more confident that in this context society would reach an accommodation 
that takes both important interests seriously?



  Moreover, you say that the fact that an exemption imposes costs on third 
parties is sufficient reason in itself to invalidate it under the Supreme 
Court's cases.  But that is not the law.  The Title VII exemption upheld 
unanimously in Amos could have been said to impose costs on employees.  But as 
Justice Brennan later explained in the Texas Monthly case, the exemption was 
upheld, "though it had some adverse effect on those holding or seeking 
employment with those organizations (if not on taxpayers generally), [because 
it] prevented potentially serious encroachments on protected religious 
freedoms."  489 U.S. at 18 n.8.  The Court treats third-party effects as 
something to be weighed against the seriousness of the "encroachment on 
religious freedom"-an approach that makes sense, given that pretty much any 
employment regulation, and therefore any exemption from it, could be said to 
affect third parties.  Your position, on the other hand, appears to be that 
"effect on third parties" is a reason to declare that no encroachment on 
religious freedom exists.  If that is so, how can there be accommodations for 
religious organizations?



  Second, you quote Thornton v. Caldor's statement that "[t]he First 
Amendment gives no one the right to insist that in pursuit of their own 
interests others must conform their conduct to his own religious necessities" 
(a principle that you say "matters here in a particularly powerful way").  Now, 
I understand and am actually rather sympathetic to the idea that the 
contraception mandate increases the ability of women employees with modest 
incomes to afford contraception.  But your phrasing does immediately trigger 
the response that the objecting employer is not, in fact, insisting that the 
employees "must conform their conduct to his own religious necessities."  The 
employer is not insisting that employees refrain from using contraception, or 
from obtaining it by means other than the insurance coverage.  (In Thornton v. 
Caldor, note, the Connecticut law did actually require others to do something: 
the employer had to give the employee his Sabbath off, indeed without 
qualification or exception.)



There are significant questions here about the baselines from which we 
determine or measure "effects on others": who is burdening whom, and which 
effect is more serious on the whole, in quality or quantity?  I acknowledge 
that there are also line-drawing issues that would arise were Hobby Lobby to 
win (the Jehovah's Witness example that Marci raises, for example).  But I 
don't think those questions are answered simply by invoking the fact that 
exempting certain employers has some effect on employees as compared with 
regulating those employers.

-

Thomas C. Berg

James L. Oberstar Professor of Law and Public Policy

University of St. Thomas School of Law

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN   55403-2015

Phone: (651) 962-4918

Fax: (651) 962-4996

E-mail: tcb...@stthomas.edu

SSRN: http://ssrn.com/author='261564

Weblog: http://www.mirrorofjustice.blogs.com





-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate







Here's a Slate piece that I wrote with Micah Schwartzman (Virgi

RE: Contraception Mandate

[Volokh, Eugene]

  I'm not Brad, but I thought I'd put my two cents' worth in:

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?

  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?

  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions).

  Eugene
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Re: Contraception Mandate

[hamilton02]

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?   


Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?  




Thanks 


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





-Original Message-
From: Brad Pardee 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Nov 26, 2013 4:57 pm
Subject: RE: Contraception Mandate


There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.

Brad Pardee

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 

Nelson Tebbe
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RE: Contraception Mandate

[Brad Pardee]

There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.

Brad Pardee

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 

Nelson Tebbe
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Contraception Mandate

[Nelson Tebbe]

Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting 
on today's cert. grant. We emphasize three differences between these cases and 
Citizens United, including the significant Establishment Clause ramifications 
of ruling in favor of the corporations here. We link to important work by Fred 
Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html
 

Nelson Tebbe
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Re: Contraception mandate - Lee

[Marty Lederman]

ate.  Given that systemic interest, the Court concluded that trying
>>>> to carve out a constitutional exception would be infeasible.  At that
>>>> point, the Court had one loose end to tie up: that Congress had in fact
>>>> legislated an exception for self-employed religious objectors.  It was in
>>>> the context of distinguishing that statutory exception from the claimed
>>>> constitutional exemption that the Court wrote that:  "Self-employed persons
>>>> in a religious community having its own "welfare" system are
>>>> distinguishable from the generality of wage earners employed by others.
>>>>  Congress and the courts have been sensitive to the needs flowing from the
>>>> Free Exercise Clause, but every person cannot be shielded from all the
>>>> burdens incident to exercising every aspect of the right to practice
>>>> religious beliefs. When followers of a particular sect enter into
>>>> commercial activity as a matter of choice, the limits they accept on their
>>>> own conduct as a matter of conscience and faith are not to be superimposed
>>>> on the statutory schemes which are binding on others in that activity."
>>>>
>>>> The contraception mandate, it seems to me, is quite different.  Most
>>>> importantly, the religious objectors are not asking to be let off the hook
>>>> financially.  As the government itself emphasizes (to make a different
>>>> point), contraceptive coverage does not make health insurance more
>>>> expensive; indeed, it probably reduces net health costs.  Thus, neither the
>>>> financial integrity of the system nor the possible resentment of other
>>>> employers is at risk.  Second, and related, with the exception of folks who
>>>> might object to any health insurance or medical treatment for that matter
>>>> (and who are easily distinguishable), there aren't a whole bunch of
>>>> religious objectors to other specific pieces of coverage waiting in the
>>>> wings.  Therefore, there's no realistic floodgate problem.  So while I'm
>>>> happy to admit that there might be some systemic interest here, it isn't
>>>> even in the ballpark of the systemic interest in collecting taxes.  So
>>>> in the light of that very different context, we're back to asking whether
>>>> there's a reason to distinguish for-profit from non-profit employers.
>>>>  There might be, for reasons I discuss in the comment.  But it's a hard
>>>> question, and not one that I think Lee resolves.
>>>>
>>>> Regards,
>>>>
>>>>Perry
>>>>
>>>> On Aug 1, 2013, at 2:35 PM, James Oleske >>> joleske at lclark.edu>> wrote:
>>>>
>>>>  
>>>>>
>>>>> Like Professor Laycock's piece, Professor Dane's piece finds fault
>>>>> with overheated claims on both sides of the debate, but I'm most 
>>>>> interested
>>>>> in the doctrinal analysis Professor Dane offers in place of the heat. In
>>>>> particular, on the issue of exemptions for for-profit institutions,
>>>>> Professor Dane's analysis begins with a line that, while not explicitly
>>>>> discussing the case, seems to track the approach of the Court in United
>>>>> States v. Lee:
>>>>>
>>>>> "I do think that the for-profit status of some religious objectors
>>>>> might be relevant, but at the back end – in the analysis of compelling
>>>>> interest – rather than the front end determination of substantial burden."
>>>>>
>>>>> Professor Dane then notes that arguments can be made for and against
>>>>> making distinctions between small and large businesses in determining the
>>>>> government's interest in denying exemptions (I would only add that the
>>>>> denial of an exemption to a very small employer in Lee may be relevant to
>>>>> further exploration of these arguments). Professor Dane concludes his
>>>>> analysis by stating that a "vital proposition in the conception of
>>>>> religious liberty" is that "believers have at least a presumptive right to
>>>>> live out the commitments of their faith across the whole range of human
>>>>> activity, including the world of business and commerce."
>>>>>
>>>>> It is this

Re: Contraception mandate - Lee

[Ira Lupu]

cases. The article uses RFRA (not yet enacted)
>> as a prime example of the problem.
>>
>> One more point about RFRA --no one showed up to oppose it in 1991 or
>> 1992. Even in 1993, the only opposition was from state AG's, concerned
>> about prisons.  I was (and remain) a RFRA skeptic.  I testified (at a House
>> subcommittee hearing) in 1992 that RFRA was unconstitutional as applied to
>> the states, and that it "over-restored" free exercise principles (e.g.,
>> protected military personnel in ways that Goldman v. Weinberger precluded'
>> likewise prisoners in light of O'Lone.)).  The RFRA proponets at that
>> hearing treated me like a skunk at a garden party.  I think members of
>> Congress were aware of none of the nuances we have been discussing.  So
>> figuring out the statutory meaning re: covering for-profit corporations is
>> an exercise in complete futility. No intent was formed on this question,
>> and federal statutory definitions make a corporation a person unless the
>> context indicates otherwise. Does it?
>>
>>
>> On Mon, Aug 5, 2013 at 8:10 PM, Perry Dane  wrote:
>>
>>> Just a couple of points on the relevance of Lee:
>>>
>>> First, I agree with James Oleske that fitting Lee into the analysis is
>>> important.  I was more concerned in my short comment (
>>> http://ssrn.com/abstract=**2296635 <http://ssrn.com/abstract=2296635> )
>>>  to make the point that questions such as the for-profit status of the
>>> employer should be addressed as part of the compelling interest analysis
>>> rather than at the threshold.
>>>
>>> Second, as to that compelling interest analysis:   The quoted line from
>>> Lee needs to be understood, it seems to me, in the light of the Court's
>>> more general point about the government's compelling interest in collecting
>>> social security (and other) taxes.  As I point out in my comment,
>>> governmental interest in the religion-based exemptions context should
>>> usually be measured "at the margin" and not in toto.  Sometimes, though,
>>> the government has an interest, even at the margin, in applying a given
>>> rule in all cases.  The Court in Lee held that the government had a
>>> compelling interest, not only in collecting taxes from Lee as such, but in
>>> maintaining a "comprehensive" system with "mandatory and continuous
>>> participation."  This makes some sense, not only for actuarial reasons, but
>>> because (I extrapolate here) rendering the tax in some sense "voluntary"
>>> would make it more difficult to enforce it against everybody else.  (Folks
>>> who are being told to pay money to the government justifiably resent it
>>> when other folks get a pass.)  Moreover, as the Court pointed out, lots of
>>> religious groups object to lots of different expenditures to which tax
>>> revenue is applied, so that allowing an exemption would open a real
>>> floodgate.  Given that systemic interest, the Court concluded that trying
>>> to carve out a constitutional exception would be infeasible.  At that
>>> point, the Court had one loose end to tie up: that Congress had in fact
>>> legislated an exception for self-employed religious objectors.  It was in
>>> the context of distinguishing that statutory exception from the claimed
>>> constitutional exemption that the Court wrote that:  "Self-employed persons
>>> in a religious community having its own "welfare" system are
>>> distinguishable from the generality of wage earners employed by others.
>>>  Congress and the courts have been sensitive to the needs flowing from the
>>> Free Exercise Clause, but every person cannot be shielded from all the
>>> burdens incident to exercising every aspect of the right to practice
>>> religious beliefs. When followers of a particular sect enter into
>>> commercial activity as a matter of choice, the limits they accept on their
>>> own conduct as a matter of conscience and faith are not to be superimposed
>>> on the statutory schemes which are binding on others in that activity."
>>>
>>> The contraception mandate, it seems to me, is quite different.  Most
>>> importantly, the religious objectors are not asking to be let off the hook
>>> financially.  As the government itself emphasizes (to make a different
>>> point), contraceptive coverage does not make health insurance more
>>> expensive; indeed, it probably reduces net health costs.  Thus, neit

Re: Contraception mandate - Lee

[Marty Lederman]

based exemptions context should
>> usually be measured "at the margin" and not in toto.  Sometimes, though,
>> the government has an interest, even at the margin, in applying a given
>> rule in all cases.  The Court in Lee held that the government had a
>> compelling interest, not only in collecting taxes from Lee as such, but in
>> maintaining a "comprehensive" system with "mandatory and continuous
>> participation."  This makes some sense, not only for actuarial reasons, but
>> because (I extrapolate here) rendering the tax in some sense "voluntary"
>> would make it more difficult to enforce it against everybody else.  (Folks
>> who are being told to pay money to the government justifiably resent it
>> when other folks get a pass.)  Moreover, as the Court pointed out, lots of
>> religious groups object to lots of different expenditures to which tax
>> revenue is applied, so that allowing an exemption would open a real
>> floodgate.  Given that systemic interest, the Court concluded that trying
>> to carve out a constitutional exception would be infeasible.  At that
>> point, the Court had one loose end to tie up: that Congress had in fact
>> legislated an exception for self-employed religious objectors.  It was in
>> the context of distinguishing that statutory exception from the claimed
>> constitutional exemption that the Court wrote that:  "Self-employed persons
>> in a religious community having its own "welfare" system are
>> distinguishable from the generality of wage earners employed by others.
>>  Congress and the courts have been sensitive to the needs flowing from the
>> Free Exercise Clause, but every person cannot be shielded from all the
>> burdens incident to exercising every aspect of the right to practice
>> religious beliefs. When followers of a particular sect enter into
>> commercial activity as a matter of choice, the limits they accept on their
>> own conduct as a matter of conscience and faith are not to be superimposed
>> on the statutory schemes which are binding on others in that activity."
>>
>> The contraception mandate, it seems to me, is quite different.  Most
>> importantly, the religious objectors are not asking to be let off the hook
>> financially.  As the government itself emphasizes (to make a different
>> point), contraceptive coverage does not make health insurance more
>> expensive; indeed, it probably reduces net health costs.  Thus, neither the
>> financial integrity of the system nor the possible resentment of other
>> employers is at risk.  Second, and related, with the exception of folks who
>> might object to any health insurance or medical treatment for that matter
>> (and who are easily distinguishable), there aren't a whole bunch of
>> religious objectors to other specific pieces of coverage waiting in the
>> wings.  Therefore, there's no realistic floodgate problem.  So while I'm
>> happy to admit that there might be some systemic interest here, it isn't
>> even in the ballpark of the systemic interest in collecting taxes.  So
>> in the light of that very different context, we're back to asking whether
>> there's a reason to distinguish for-profit from non-profit employers.
>>  There might be, for reasons I discuss in the comment.  But it's a hard
>> question, and not one that I think Lee resolves.
>>
>> Regards,
>>
>>Perry
>>
>> On Aug 1, 2013, at 2:35 PM, James Oleske > joleske at lclark.edu>> wrote:
>>
>>  
>>>
>>> Like Professor Laycock's piece, Professor Dane's piece finds fault with
>>> overheated claims on both sides of the debate, but I'm most interested in
>>> the doctrinal analysis Professor Dane offers in place of the heat. In
>>> particular, on the issue of exemptions for for-profit institutions,
>>> Professor Dane's analysis begins with a line that, while not explicitly
>>> discussing the case, seems to track the approach of the Court in United
>>> States v. Lee:
>>>
>>> "I do think that the for-profit status of some religious objectors might
>>> be relevant, but at the back end – in the analysis of compelling interest –
>>> rather than the front end determination of substantial burden."
>>>
>>> Professor Dane then notes that arguments can be made for and against
>>> making distinctions between small and large businesses in determining the
>>> government's interest in denying exemptions (I would only add that the
>>> denial of an exemption t

Re: Contraception mandate - Lee

[Ira Lupu]

ect of the right to practice
> religious beliefs. When followers of a particular sect enter into
> commercial activity as a matter of choice, the limits they accept on their
> own conduct as a matter of conscience and faith are not to be superimposed
> on the statutory schemes which are binding on others in that activity."
>
> The contraception mandate, it seems to me, is quite different.  Most
> importantly, the religious objectors are not asking to be let off the hook
> financially.  As the government itself emphasizes (to make a different
> point), contraceptive coverage does not make health insurance more
> expensive; indeed, it probably reduces net health costs.  Thus, neither the
> financial integrity of the system nor the possible resentment of other
> employers is at risk.  Second, and related, with the exception of folks who
> might object to any health insurance or medical treatment for that matter
> (and who are easily distinguishable), there aren't a whole bunch of
> religious objectors to other specific pieces of coverage waiting in the
> wings.  Therefore, there's no realistic floodgate problem.  So while I'm
> happy to admit that there might be some systemic interest here, it isn't
> even in the ballpark of the systemic interest in collecting taxes.  So
> in the light of that very different context, we're back to asking whether
> there's a reason to distinguish for-profit from non-profit employers.
>  There might be, for reasons I discuss in the comment.  But it's a hard
> question, and not one that I think Lee resolves.
>
> Regards,
>
>Perry
>
> On Aug 1, 2013, at 2:35 PM, James Oleske  joleske at lclark.edu>> wrote:
>
>  
>>
>> Like Professor Laycock's piece, Professor Dane's piece finds fault with
>> overheated claims on both sides of the debate, but I'm most interested in
>> the doctrinal analysis Professor Dane offers in place of the heat. In
>> particular, on the issue of exemptions for for-profit institutions,
>> Professor Dane's analysis begins with a line that, while not explicitly
>> discussing the case, seems to track the approach of the Court in United
>> States v. Lee:
>>
>> "I do think that the for-profit status of some religious objectors might
>> be relevant, but at the back end – in the analysis of compelling interest –
>> rather than the front end determination of substantial burden."
>>
>> Professor Dane then notes that arguments can be made for and against
>> making distinctions between small and large businesses in determining the
>> government's interest in denying exemptions (I would only add that the
>> denial of an exemption to a very small employer in Lee may be relevant to
>> further exploration of these arguments). Professor Dane concludes his
>> analysis by stating that a "vital proposition in the conception of
>> religious liberty" is that "believers have at least a presumptive right to
>> live out the commitments of their faith across the whole range of human
>> activity, including the world of business and commerce."
>>
>> It is this last point that I think would benefit most from being expanded
>> to account for the doctrinal significance of Lee, where the Court
>> identified a competing presumption that comes into play in for-profit cases
>> due to impact on third parties:
>>
>> "When followers of a particular sect enter into commercial activity as a
>> matter of choice, the limits they accept on their own conduct as a matter
>> of conscience and faith are not to be superimposed on the statutory schemes
>> which are binding on others in that activity. Granting an exemption from
>> social security taxes to an employer operates to impose the employer's
>> religious faith on the employ
>>
>> 
>>
>
>
> __**_
> 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<http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>



-- 
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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Contraception mandate - Lee

[Perry Dane]

Just a couple of points on the relevance of Lee:

First, I agree with James Oleske that fitting Lee 
into the analysis is important.  I was more 
concerned in my short comment ( 
http://ssrn.com/abstract=2296635 )  to make the 
point that questions such as the for-profit 
status of the employer should be addressed as 
part of the compelling interest analysis rather than at the threshold.


Second, as to that compelling interest 
analysis:   The quoted line from Lee needs to be 
understood, it seems to me, in the light of the 
Court's more general point about the government's 
compelling interest in collecting social security 
(and other) taxes.  As I point out in my comment, 
governmental interest in the religion-based 
exemptions context should usually be measured "at 
the margin" and not in toto.  Sometimes, though, 
the government has an interest, even at the 
margin, in applying a given rule in all 
cases.  The Court in Lee held that the government 
had a compelling interest, not only in collecting 
taxes from Lee as such, but in maintaining a 
"comprehensive" system with "mandatory and 
continuous participation."  This makes some 
sense, not only for actuarial reasons, but 
because (I extrapolate here) rendering the tax in 
some sense "voluntary" would make it more 
difficult to enforce it against everybody 
else.  (Folks who are being told to pay money to 
the government justifiably resent it when other 
folks get a pass.)  Moreover, as the Court 
pointed out, lots of religious groups object to 
lots of different expenditures to which tax 
revenue is applied, so that allowing an exemption 
would open a real floodgate.  Given that systemic 
interest, the Court concluded that trying to 
carve out a constitutional exception would be 
infeasible.  At that point, the Court had one 
loose end to tie up: that Congress had in fact 
legislated an exception for self-employed 
religious objectors.  It was in the context of 
distinguishing that statutory exception from the 
claimed constitutional exemption that the Court 
wrote that:  "Self-employed persons in a 
religious community having its own "welfare" 
system are distinguishable from the generality of 
wage earners employed by others.  Congress and 
the courts have been sensitive to the needs 
flowing from the Free Exercise Clause, but every 
person cannot be shielded from all the burdens 
incident to exercising every aspect of the right 
to practice religious beliefs. When followers of 
a particular sect enter into commercial activity 
as a matter of choice, the limits they accept on 
their own conduct as a matter of conscience and 
faith are not to be superimposed on the statutory 
schemes which are binding on others in that activity."


The contraception mandate, it seems to me, is 
quite different.  Most importantly, the religious 
objectors are not asking to be let off the hook 
financially.  As the government itself emphasizes 
(to make a different point), contraceptive 
coverage does not make health insurance more 
expensive; indeed, it probably reduces net health 
costs.  Thus, neither the financial integrity of 
the system nor the possible resentment of other 
employers is at risk.  Second, and related, with 
the exception of folks who might object to any 
health insurance or medical treatment for that 
matter (and who are easily distinguishable), 
there aren't a whole bunch of religious objectors 
to other specific pieces of coverage waiting in 
the wings.  Therefore, there's no realistic 
floodgate problem.  So while I'm happy to admit 
that there might be some systemic interest here, 
it isn't even in the ballpark of the systemic 
interest in collecting taxes.  So in the 
light of that very different context, we're back 
to asking whether there's a reason to distinguish 
for-profit from non-profit employers.  There 
might be, for reasons I discuss in the 
comment.  But it's a hard question, and not one that I think Lee resolves.


Regards,

   Perry

On Aug 1, 2013, at 2:35 PM, James Oleske at lclark.edu<mailto:joleske at lclark.edu>> wrote:





Like Professor Laycock's piece, Professor Dane's 
piece finds fault with overheated claims on both 
sides of the debate, but I'm most interested in 
the doctrinal analysis Professor Dane offers in 
place of the heat. In particular, on the issue 
of exemptions for for-profit institutions, 
Professor Dane's analysis begins with a line 
that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:


"I do think that the for-profit status of some 
religious objectors might be relevant, but at 
the back end – in the analysis of compelling 
interest – rather than the front end determination of substantial burden."


Professor Dane then notes that arguments can be 
made for and against making distincti

Contraception Mandate - Corporate Claims

[Conkle, Daniel O.]

Stephen Bainbridge, speaking from the standpoint of corporate law, has an 
interesting article in the current issue of The Green Bag (Vol. 16, No. 3, 
Spring 2013):  "Using Reverse Veil Piercing to Vindicate the Free Exercise 
Rights of Incorporated Employers."

(The same issue has an article by Chip Lupu recounting some fascinating 
personal experiences that have informed his teaching of U.S. v. O'Brien.)


Daniel O. 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


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Re: Citations to Listserv posts/Contraception mandate

[seanwilsonorg]

... Let me present another view.

Scholarship is not about vanity; it's about the ideas. Things that are relevant 
to an idea can come in many forms -- letters, songs, poems, conversations 
between spouses or a public speech. It could come from a diary or a movie. The 
trouble comes when we fail to be cognizant of the kind of source material that 
falls within our scholastic purview. What is said in an e-mail may not be the 
person's "considerate views" for a variety of reasons. We all know havoc that 
can come from the ease of the medium and from hip shooting in general. At the 
same time, we also know that relying only upon formally published material is 
too stuffy (formalistic). It betrays everything we know about the virtues of 
understanding premises and propositions by using historical context, biography, 
portrayal, social context and whatnot. And so, perhaps this is the answer: 
e-mails may indeed become scholarly relevant, but they only ever amount to a 
quick and cursory sort of thing. If someone were to cite to X's e-mailed 
position, it should never be regarded as his or her considerate view, without 
more, and it should always be dealt with by the person using it with 
qualification (apologetically). You should, in short, be able to apologetically 
use any e-mail, if it was truly relevant to the scholarly issue, and if, in 
text, you remind the reader of its inherent contingent value.

One other nothing. I hope we all agree that "aristocrat ethics" should be 
avoided at all cost. Surely no one would propose a veil of secrecy around their 
emails because of a concern for vanity or for club status. Sometimes I think we 
misunderstand what the true ethic is here: the pursuit of truth/perspective and 
the need for intellectual discourse.

So long as you use the email apologetically -- recognizing its contingent 
status -- it's okay to use it if doing so is relevant.

Sent from my iPad

On Aug 2, 2013, at 1:21 PM, "Scarberry, Mark"  
wrote:

I'm the moderator only for conlawprof, and Eugene may have a different 
suggestion for the religionlaw list, but may I strongly recommend that list 
posts not be quoted, and positions taken on the list not be attributed, without 
permission of the poster. I think that is a matter of courtesy, and it's also 
been our custom. No one can control what non-members may do with the archives, 
but we are a kind of community. The poster also may have made the point 
somewhere in print; if you ask, they could give you the reference to cite, 
which provides multiple benefits.

Sent from my iPad


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A note from the conlawprof moderator -- Re: Citations to Listserv posts/Contraception mandate

[Scarberry, Mark]

I'm the moderator only for conlawprof, and Eugene may have a different 
suggestion for the religionlaw list, but may I strongly recommend that list 
posts not be quoted, and positions taken on the list not be attributed, without 
permission of the poster. I think that is a matter of courtesy, and it's also 
been our custom. No one can control what non-members may do with the archives, 
but we are a kind of community. The poster also may have made the point 
somewhere in print; if you ask, they could give you the reference to cite, 
which provides multiple benefits.

Best,
Mark

Mark Scarberry
Pepperdine University School of Law


Sent from my Verizon Wireless 4G LTE Smartphone



 Original message 
From: Scott Gerber 
Date: 08/02/2013 5:18 AM (GMT-07:00)
To: "Gilbert, Lauren" 
Cc: Law & Religion issues for Law Academics 
,Conlawprof 
Subject: Re: Citations to Listserv posts/Contraception mandate


My recollection is that years ago we were _not_ supposed to cite the listserv 
without permission, and when it was cited without permission on a couple of 
occasions there was some criticism for it.  I mention this only for purposes of 
information.
Scott


On Fri, Aug 2, 2013 at 7:42 AM, Gilbert, Lauren 
mailto:lgilb...@stu.edu>> wrote:
I agree, but I also think that as a matter of professional courtesy, one should 
let ones’ colleagues know if they are being cited for something said in an 
online discussion and to give them a chance to respond.  I had this experience 
with one of my pieces several years ago, where I actually had sent a draft to a 
colleague who I had cited based on an online discussion on ImmProf, asking for 
feedback, but without specifically mentioning that I had cited her.  I got this 
response back . . . .


I received your email but unfortunately not the attachment. I recall seeing the 
note in one of the previous versions and assume the text leading to it hasn't 
changed. I have to admit that I was initially surprised to see it cited given 
that I take the listserv discussion to be "internal" among the listed 
participants but I fully understand that your intention was a good one and am 
therefore comfortable with granting permission to cite it in your forthcoming 
article.



Since then, I have been religious (no pun intended) about letting people know 
if I am citing them from an online discussion, and giving them a chance to 
respond.  I fully recognize that others may not show me the same courtesy, so 
when I post I do so at my own risk.  Even though ImmProf is not public like the 
ConLaw listserv, there are folks who are with the Government as well as many 
lurkers who may have taught one course as an adjunct and stay on without saying 
anything.It’s not a question of must but should . . . .


Lauren Gilbert, Esq.
Professor of Law
St. Thomas University School of Law
16401 NW 37th Ave.
Miami Gardens, FL  33054
Tel:  (305) 623-2386 (work)
You can access my papers on the Social Science Research Network (SSRN) at 
http://ssrn.com/author=339800

From: 
conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> 
[mailto:conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>]
 On Behalf Of Shapiro, Carolyn
Sent: Thursday, August 01, 2013 11:31 PM
To: Robert Sheridan
Cc: Law & Religion issues for Law Academics; Conlawprof
Subject: Re: Citations to Listserv posts/Contraception mandate

I think it is essential to be able to cite listserv posts.  If someone has 
posted something that has helped advance my thinking, it would be inappropriate 
not to cite them.

On Thu, Aug 1, 2013 at 7:19 PM, Robert Sheridan 
mailto:r...@robertsheridan.com>> wrote:
I figure that the right of free speech belongs to those having the courage to 
use it.  If I'm going to be concerned that someone is going to quote me, I'm in 
more trouble than keeping my mouth shut.

Wouldn't it be nice if any of us ever said anything quote-worthy, esp. yours 
truly.

Of course, it helps, when speaking out in a public forum, to abandon any hope 
of public acceptance.  The governor of California wants to know about all 
publications by candidates, especially those which might be controversial, when 
considering judicial applications, which I've never submitted.  Ran once, but 
didn't apply, not respecting the governor sufficiently to ask a favor.

Then there's this advisory at the end of each post, added by the machine 
handling Conlawprofs:  "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."

I look at this forum as a place to try out views, hoping that those more 
learned and experienced will advise where I've made a wrong turn, as has 
happened.

rs


On 

Re: Contraception mandate

[James Oleske]

That strikes me as a perfectly fine argument, but one that goes to the
question of whether there actually were any relevant common understandings
of the language in 1997, not the question of whether the 1997 legislative
history would be irrelevant even if such understandings actually existed.

Of course, when courts look for common understandings in legislative
debates, they tend to look to the evidence on the record and not
unarticulated positions. The House report, both sets of dissenting views in
the report, and testimony from multiple opponents of the bill all assume
individuals running businesses like landlords could invoke RLPA. Is there
anything on the record running contrary to this apparent common
understanding?

If not, I tend to think that the RLPA legislative history, combined with
Lee, makes it very difficult to argue that all for-profit commercial
activity is categorically excluded from RFRA protections.

Less clear is whether for-profit corporations are categorically excluded (I
see Marci has sent a separate email arguing that inclusion of for-profit
corporations was not contemplated during the original RFRA debate; if
that's correct, when combined with the ambiguity of the 1997 legislative
record on the issue, I'd be inclined to conclude that neither the
legislative history of RFRA or RLPA is of very much help on the
corporate-coverage issue).

Even less clear is, assuming for-profit corporations are not categorically
excluded from RFRA, how might protection for those corporations nonetheless
be limited by the "commercial activity" language in Lee (the issue the
Hobby Lobby court neglected to address -- which brings me back to where I
started, and where I should probably step out of this discussion for the
time being).

Best,

Jim


On Fri, Aug 2, 2013 at 9:22 AM, Marci Hamilton  wrote:

> My point yesterday is that the Coalition am the ACLU are not both sides.
>  Far from it
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 2, 2013, at 12:09 PM, James Oleske  wrote:
>
> Marci - I agree that if one side or the other in the 1997 debate was
> attempting to make after-the-fact legislative history for RFRA, that
> history would be of marginal value. But that's not the theory of relevance
> that Doug offers in his article and that I asked about yesterday. Doug
> offered the theory that, if both sides in the 1997 had a common
> understanding about the language common to RLPA and RFRA, that would be
> relevant to interpreting RFRA. What's wrong with that theory as a general
> matter? To be sure, on the specific issue of whether for-profit *corporations
> *can invoke a defense under the language, the 1997 legislative history
> indicates that there was not a common understanding. But in cases where
> there was a common understanding on the record (as appears there might have
> been concerning individual landlords), I'm not sure why that common
> understanding wouldn't be a relevant interpretive tool (not the only tool,
> of course, but one such tool).
>
> Marc - Prior to reading the ACLU testimony yesterday, I would have been
> inclined to agree with your suggestion. But the ACLU testimony actually
> puts the issue in precisely the same terms we seem to be discussing it
> today ("The question of whether a corporate employer or corporate landlord
> may raise a religious liberty defense is less clear than whether an
> individual serving as an employer or landlord may raise that defense."). So
> I'm inclined to think the 1997 legislative history is relevant to our
> discussion of cases like Hobby Lobby case precisely because it shows that
> there was *not* a common understanding about RFRA protecting for-profit
> corporations, but there may have been a common understanding about RFRA
> protecting individuals engaged in commercial activity.
>
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:
>
>> Except that 1997 itself is an irrelevant date.  The relevant dates are
>> 1990-93, during the enactment of RFRA.
>>
>> Marci
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>>
>> IS it possible that the search for legislative history on the question of
>> whether in 1997 Congress thought corporations could benefit from religious
>> liberty provisions is anachronistic .Today, that question is colored by
>> one’ s feelings towards Citizens United; in 1997 ( and especially when
>> arguing to a political body like Congress and in an effort to muster public
>> opinion) the issue was cast in less  abstract terms. 
>>
>> Marc  Stern
>>
>> ** **
>>
>> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>

Re: Contraception mandate

[Marci Hamilton]

Here are some unassailable facts about RFRAs enactment that make 1997 too late 
to bring for profit corps under RFRAs intended reach 

1.  The vast majority of RFRA's Legis history is not about its actual content 
but rather testimony critical of Smith and the Supreme Court.

2.  The Coalition had an express agreement not to tell members or the press 
what particular laws each hoped to overcome.   They needed to stay mum on their 
individual agendas to remain at the table together.

3.  The abstract constitutional law level of scrutiny formula drove discussion 
away from specifics.

4.  No one remotely hinted that it would be applicable to for-profit 
corporations or that there was any corporation in the US intent on avoiding 
laws through RFRA 

5.  Had the ACLU, Americans United, and People for the American Way and the 
Democrats understood RFRA at the time as the anti-civil rights bill the 10th 
Cir found it to be, it would have gone nowhere.  Inconceivable.  One of its 
virtues for members was anything loved by the left and right had to be good.  

6.  RFRA's feel-good, opaque formula led members not to challenge the lobbyists 
to explain its actual impact.  The few examples involved a minyan and autopsies.

Nothing in this history supports a claim that RFRA was intended to cover 
for-profit corporations.

Marci


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 2, 2013, at 12:09 PM, James Oleske  wrote:

> Marci - I agree that if one side or the other in the 1997 debate was 
> attempting to make after-the-fact legislative history for RFRA, that history 
> would be of marginal value. But that's not the theory of relevance that Doug 
> offers in his article and that I asked about yesterday. Doug offered the 
> theory that, if both sides in the 1997 had a common understanding about the 
> language common to RLPA and RFRA, that would be relevant to interpreting 
> RFRA. What's wrong with that theory as a general matter? To be sure, on the 
> specific issue of whether for-profit corporations can invoke a defense under 
> the language, the 1997 legislative history indicates that there was not a 
> common understanding. But in cases where there was a common understanding on 
> the record (as appears there might have been concerning individual 
> landlords), I'm not sure why that common understanding wouldn't be a relevant 
> interpretive tool (not the only tool, of course, but one such tool). 
> 
> Marc - Prior to reading the ACLU testimony yesterday, I would have been 
> inclined to agree with your suggestion. But the ACLU testimony actually puts 
> the issue in precisely the same terms we seem to be discussing it today ("The 
> question of whether a corporate employer or corporate landlord may raise a 
> religious liberty defense is less clear than whether an  individual serving 
> as an employer or landlord may raise that defense."). So I'm inclined to 
> think the 1997 legislative history is relevant to our discussion of cases 
> like Hobby Lobby case precisely because it shows that there was not a common 
> understanding about RFRA protecting for-profit corporations, but there may 
> have been a common understanding about RFRA protecting individuals engaged in 
> commercial activity. 
> 
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:
>> Except that 1997 itself is an irrelevant date.  The relevant dates are 
>> 1990-93, during the enactment of RFRA.
>> 
>> Marci
>> 
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton 
>> 
>> 
>> 
>> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>> 
>>> IS it possible that the search for legislative history on the question of 
>>> whether in 1997 Congress thought corporations could benefit from religious 
>>> liberty provisions is anachronistic .Today, that question is colored by 
>>> one’ s feelings towards Citizens United; in 1997 ( and especially when 
>>> arguing to a political body like Congress and in an effort to muster public 
>>> opinion) the issue was cast in less  abstract terms.
>>> 
>>> Marc  Stern
>>> 
> ___
> 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.
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Anyon

Re: Contraception mandate

[Marci Hamilton]

My point yesterday is that the Coalition am the ACLU are not both sides.  Far 
from it

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 2, 2013, at 12:09 PM, James Oleske  wrote:

> Marci - I agree that if one side or the other in the 1997 debate was 
> attempting to make after-the-fact legislative history for RFRA, that history 
> would be of marginal value. But that's not the theory of relevance that Doug 
> offers in his article and that I asked about yesterday. Doug offered the 
> theory that, if both sides in the 1997 had a common understanding about the 
> language common to RLPA and RFRA, that would be relevant to interpreting 
> RFRA. What's wrong with that theory as a general matter? To be sure, on the 
> specific issue of whether for-profit corporations can invoke a defense under 
> the language, the 1997 legislative history indicates that there was not a 
> common understanding. But in cases where there was a common understanding on 
> the record (as appears there might have been concerning individual 
> landlords), I'm not sure why that common understanding wouldn't be a relevant 
> interpretive tool (not the only tool, of course, but one such tool). 
> 
> Marc - Prior to reading the ACLU testimony yesterday, I would have been 
> inclined to agree with your suggestion. But the ACLU testimony actually puts 
> the issue in precisely the same terms we seem to be discussing it today ("The 
> question of whether a corporate employer or corporate landlord may raise a 
> religious liberty defense is less clear than whether an  individual serving 
> as an employer or landlord may raise that defense."). So I'm inclined to 
> think the 1997 legislative history is relevant to our discussion of cases 
> like Hobby Lobby case precisely because it shows that there was not a common 
> understanding about RFRA protecting for-profit corporations, but there may 
> have been a common understanding about RFRA protecting individuals engaged in 
> commercial activity. 
> 
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:
>> Except that 1997 itself is an irrelevant date.  The relevant dates are 
>> 1990-93, during the enactment of RFRA.
>> 
>> Marci
>> 
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton 
>> 
>> 
>> 
>> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>> 
>>> IS it possible that the search for legislative history on the question of 
>>> whether in 1997 Congress thought corporations could benefit from religious 
>>> liberty provisions is anachronistic .Today, that question is colored by 
>>> one’ s feelings towards Citizens United; in 1997 ( and especially when 
>>> arguing to a political body like Congress and in an effort to muster public 
>>> opinion) the issue was cast in less  abstract terms.
>>> 
>>> Marc  Stern
>>> 
> ___
> 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.
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Anyone can subscribe to the list and read messages that are posted; people can 
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messages to others.

Re: Contraception mandate

[James Oleske]

Marci - I agree that if one side or the other in the 1997 debate was
attempting to make after-the-fact legislative history for RFRA, that
history would be of marginal value. But that's not the theory of relevance
that Doug offers in his article and that I asked about yesterday. Doug
offered the theory that, if both sides in the 1997 had a common
understanding about the language common to RLPA and RFRA, that would be
relevant to interpreting RFRA. What's wrong with that theory as a general
matter? To be sure, on the specific issue of whether for-profit *corporations
*can invoke a defense under the language, the 1997 legislative history
indicates that there was not a common understanding. But in cases where
there was a common understanding on the record (as appears there might have
been concerning individual landlords), I'm not sure why that common
understanding wouldn't be a relevant interpretive tool (not the only tool,
of course, but one such tool).

Marc - Prior to reading the ACLU testimony yesterday, I would have been
inclined to agree with your suggestion. But the ACLU testimony actually
puts the issue in precisely the same terms we seem to be discussing it
today ("The question of whether a corporate employer or corporate landlord
may raise a religious liberty defense is less clear than whether an
individual serving as an employer or landlord may raise that defense."). So
I'm inclined to think the 1997 legislative history is relevant to our
discussion of cases like Hobby Lobby case precisely because it shows that
there was *not* a common understanding about RFRA protecting for-profit
corporations, but there may have been a common understanding about RFRA
protecting individuals engaged in commercial activity.

On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:

> Except that 1997 itself is an irrelevant date.  The relevant dates are
> 1990-93, during the enactment of RFRA.
>
> Marci
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>
> IS it possible that the search for legislative history on the question of
> whether in 1997 Congress thought corporations could benefit from religious
> liberty provisions is anachronistic .Today, that question is colored by
> one’ s feelings towards Citizens United; in 1997 ( and especially when
> arguing to a political body like Congress and in an effort to muster public
> opinion) the issue was cast in less  abstract terms. 
>
> Marc  Stern
>
> ** **
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: Contraception mandate

[Marci Hamilton]

Except that 1997 itself is an irrelevant date.  The relevant dates are 1990-93, 
during the enactment of RFRA.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:

> IS it possible that the search for legislative history on the question of 
> whether in 1997 Congress thought corporations could benefit from religious 
> liberty provisions is anachronistic .Today, that question is colored by one’ 
> s feelings towards Citizens United; in 1997 ( and especially when arguing to 
> a political body like Congress and in an effort to muster public opinion) the 
> issue was cast in less  abstract terms.
> Marc  Stern
>  
>  
> 0From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
> Sent: Thursday, August 01, 2013 10:02 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Contraception mandate
>  
> I know I'm not the listmod, but could we please keep the posts on topic for 
> the listserv?
> 
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
> 
> On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene"  wrote:
> 
> No, Marci.  You personalized this.
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Thursday, August 01, 2013 5:20 PM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Contraception mandate
>  
> I was not particularly interested in solely Doug's statements at the time, 
> but rather his reasoning in his new piece.   Marc and now Eugene have 
> personalized this.
> ___
> 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.
___
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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: Contraception mandate

[Marc Stern]

IS it possible that the search for legislative history on the question of 
whether in 1997 Congress thought corporations could benefit from religious 
liberty provisions is anachronistic .Today, that question is colored by one’ s 
feelings towards Citizens United; in 1997 ( and especially when arguing to a 
political body like Congress and in an effort to muster public opinion) the 
issue was cast in less  abstract terms.
Marc  Stern


0From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Thursday, August 01, 2013 10:02 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

I know I'm not the listmod, but could we please keep the posts on topic for the 
listserv?
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
No, Marci.  You personalized this.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
___
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

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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: Contraception mandate

[James Oleske]

In poking around further in the legislative history of RLPA, I think there
is evidence that there might *not *have been a common understanding about
the applicability of RLPA and RFRA to for-profit *corporations* as opposed
to individual landlords:

"The question of whether a corporate employer or corporate landlord may
raise a religious liberty defense is less clear than whether an individual
serving as an employer or landlord may raise that defense."

Religious Liberty Protection Act of 1999: Hearing Before the Subcomm. on
the Constitution of the H. Comm. on the Judiciary, 106th Cong. 127
(statement of Christopher Anders, ACLU Legislative Counsel) (citing two
pre-Smith lower court decisions that went in different directions on the
issue in dicta).

As for my initial question concerning whether there was any discussion of
the import of Lee's "commercial activity" passage during the debate over
RLPA and its applicability to civil rights defendants, there does not
appear to be any such discussion in the House hearing transcript (I haven't
had a chance to look through all the submitted testimony, some of which
might include a more extended discussion of Lee).

Of course, even if Lee had been relied upon by supporters of RLPA to
assuage concerns about the proposed act's reach into the commercial
context, I'm not sure how relevant it would be to the current debate over
the earlier-enacted RFRA. I'm persuaded by Doug's argument that if both
sides in the RLPA debate has a common understanding of what the identical
RFRA and RLPA language meant, that would be helpful in interpreting RFRA,
but the scenario I asked about (one side trying to unsuccessfully assuage
the concerns of the other side) wouldn't meet that standard, and probably
falls more into the category of attempted "post-enactment legislative
history."

All of which leaves us with lingering unanswered questions about Lee, which
I continue to believe is a case that poses difficulties for leading
arguments on both sides of the contraception mandate debate.


On Thu, Aug 1, 2013 at 7:29 PM, Marty Lederman wrote:

> OK, here's an effort to get us back on the track (of the current circuit
> split):
>
> What Doug wrote was that there was a common understanding that RLPA "would
> protect for-profit *businesses* from civil rights claims *that **substantially
> burdened the owner’s free exercise of religion*."
>
> Now, it's not clear how this bears on whether and when *RFRA *protects
> for-profit corporations, since RFRA was enacted before RLPA was considered
> . . . but even if there were some basis for treating the two as coterminous
> . . . and even if RLPA would have protected the exercise of religion of the
> *owner *of a for-profit *business *(Doug points to landlords), that would
> not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga
> *-- of whether a for-profit *corporation* exercises religion; whether
> such a corporation has any religious duties that might be violated if the
> corporation complies with the ACA; and, if so, whether the HHS reg would
> substantially burden the religious exercise of the for-profit corporation
> itself.
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Contraception mandate

[Marci Hamilton]

There is no "all" in the legislative process.   There are only competing 
interests and conflicting sides. I am not going to belabor this for this 
exchange, but as someone who was as intimately involved in this as Doug, but on 
the opposite side, his description encompasses some but not all of what was 
happening.  He can certainly speak for those who started altogether on his side 
even if they split asunder later.   That would be the Coalition and the civil 
rights groups.

He cannot speak authoritatively for those who were on the other side, 
particularly when they ultimately prevailed.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 1, 2013, at 9:48 PM, Marc Stern  wrote:

> An additional fact: the civil rights issue came into public view after the 
> ACLU wrote a letter to Congress-whether to the whole house or the judiciary 
> committee I don't recall- spelling out in detail the cases in which civil 
> liberties and religious liberty claims clashed. It was that letter that 
> sparked the nadler amendment and the breakup of the coalition that had 
> earlier  supported RFRA.
> Marc
> 
> - Original Message -
> From: Douglas Laycock [mailto:dlayc...@virginia.edu]
> Sent: Thursday, August 01, 2013 09:30 PM
> To: Law & Religion issues for Law Academics ; 
> hamilto...@aol.com 
> Subject: Re: Contraception mandate
> 
> RLUIPA does not apply to fair housing laws because it applies only to land 
> use regulation and institutionalized persons, and it exprssly defines land 
> use regulation as zoning and landmarking. Period. No mystery to explain. 
> 
> My recollection is that that definition was added late in the process. I have 
> not checked that. 
> 
> Before that amendment, neither I nor any other supporter assured opponents 
> that RLPA would not apply to fair housing laws. The whole fight was fueled by 
> fair housing laws.
> 
> There were negotiations about exempting large landlords and protecting small 
> landlords. But these negotiations quickly broke down because the two sides 
> were too far apart on what the size limit should be.
> 
> RLPA had other opponents, but the civil rights issue is what killed it. It is 
> not true that it was doomed by its overbreadth. It was not even obvious at 
> the time that it was doomed by the civil rights fight.
> 
> The Nadler Amendment to exclude civil rights claims was defeated in the House 
> 234-190. The unamended bill then passed the House 306-118. That lopsided yes 
> vote hardly suggests a doomed bill. Skeptics can find these votes at 145 
> Cong. Rec. H5607-08. The bill then died in the Senate without a vote. 
> 
> Both sides in the debate over the Nadler Amendment, and in the earlier 
> debates in committee, were fighting about a live issue. No one thought they 
> were making post-enactment legislative history for RFRA. They were all acting 
> on a common understanding about what the language copied from RFRA meant.
> 
> On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
> hamilto...@aol.com wrote:
>> 
>> I was not particularly interested in solely Doug's statements at the time, 
>> but rather his reasoning in his new piece.   Marc and now Eugene have 
>> personalized this.
>> There is no need for that.
>> 
>> 
>> Here is a fact:  Many following enactment of RLUIPA have stated 
>> unequivocally that the land use provisions were not intended to apply to the 
>> fair housing (i.e., civil rights) laws.  
>> Since the only legis history on RLUIPA was RLPA, that assumption (that the 
>> civil rights laws were beyond the new statute) had to come from the RLPA 
>> proceedings.   
>> What is the missing piece that explains how Doug and Marc have explained the 
>> history?
>> 
>> 
>> 
>> 
>> 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
>> 
>> 
>> 
>> 
>> 
>> -Original Message-
>> From: Volokh, Eugene 
>> To: Law & Religion issues for Law Academics 
>> Sent: Thu, Aug 1, 2013 7:56 pm
>> Subject: RE: Contraception mandate
>> 
>> 
>> 
>>   Indeed, Marci didn’t say Doug was “lying,” but when one says 
>> of a first-hand witness that the “history, as I knew it, was distinctive 
>> from his account,” and “Not sure how to square [Doug’s past reassurances] w 
>> Doug's current statements,” the 

Re: Contraception mandate

[Marty Lederman]

OK, here's an effort to get us back on the track (of the current circuit
split):

What Doug wrote was that there was a common understanding that RLPA "would
protect for-profit *businesses* from civil rights claims *that **substantially
burdened the owner’s free exercise of religion*."

Now, it's not clear how this bears on whether and when *RFRA *protects
for-profit corporations, since RFRA was enacted before RLPA was considered
. . . but even if there were some basis for treating the two as coterminous
. . . and even if RLPA would have protected the exercise of religion of the
*owner *of a for-profit *business *(Doug points to landlords), that would
not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga
*-- of whether a for-profit *corporation* exercises religion; whether such
a corporation has any religious duties that might be violated if the
corporation complies with the ACA; and, if so, whether the HHS reg would
substantially burden the religious exercise of the for-profit corporation
itself.



On Thu, Aug 1, 2013 at 10:01 PM, David Cruz  wrote:

> I know I'm not the listmod, but could we please keep the posts on topic
> for the listserv?
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene"  wrote:
>
> No, Marci.  You personalized this.
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *hamilto...@aol.com
> *Sent:* Thursday, August 01, 2013 5:20 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Contraception mandate
>
> ** **
>
> I was not particularly interested in solely Doug's statements at the time,
> but rather his reasoning in his new piece.   Marc and now Eugene have
> personalized this.
>
>
> ___
> 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: Contraception mandate

[David Cruz]

I know I'm not the listmod, but could we please keep the posts on topic for the 
listserv?

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

No, Marci.  You personalized this.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
___
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: Contraception mandate

[Marc Stern]

An additional fact: the civil rights issue came into public view after the ACLU 
wrote a letter to Congress-whether to the whole house or the judiciary 
committee I don't recall- spelling out in detail the cases in which civil 
liberties and religious liberty claims clashed. It was that letter that sparked 
the nadler amendment and the breakup of the coalition that had earlier  
supported RFRA.
Marc

- Original Message -
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Thursday, August 01, 2013 09:30 PM
To: Law & Religion issues for Law Academics ; 
hamilto...@aol.com 
Subject: Re: Contraception mandate

RLUIPA does not apply to fair housing laws because it applies only to land use 
regulation and institutionalized persons, and it exprssly defines land use 
regulation as zoning and landmarking. Period. No mystery to explain. 

My recollection is that that definition was added late in the process. I have 
not checked that. 

Before that amendment, neither I nor any other supporter assured opponents that 
RLPA would not apply to fair housing laws. The whole fight was fueled by fair 
housing laws.

There were negotiations about exempting large landlords and protecting small 
landlords. But these negotiations quickly broke down because the two sides were 
too far apart on what the size limit should be.

RLPA had other opponents, but the civil rights issue is what killed it. It is 
not true that it was doomed by its overbreadth. It was not even obvious at the 
time that it was doomed by the civil rights fight.

The Nadler Amendment to exclude civil rights claims was defeated in the House 
234-190. The unamended bill then passed the House 306-118. That lopsided yes 
vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. 
Rec. H5607-08. The bill then died in the Senate without a vote. 

Both sides in the debate over the Nadler Amendment, and in the earlier debates 
in committee, were fighting about a live issue. No one thought they were making 
post-enactment legislative history for RFRA. They were all acting on a common 
understanding about what the language copied from RFRA meant.

On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
 hamilto...@aol.com wrote:
>
>I was not particularly interested in solely Doug's statements at the time, but 
>rather his reasoning in his new piece.   Marc and now Eugene have personalized 
>this.
>There is no need for that.
>
>
>Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
>that the land use provisions were not intended to apply to the fair housing 
>(i.e., civil rights) laws.  
>Since the only legis history on RLUIPA was RLPA, that assumption (that the 
>civil rights laws were beyond the new statute) had to come from the RLPA 
>proceedings.   
>What is the missing piece that explains how Doug and Marc have explained the 
>history?
>
>
>
>
>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
>
>
>
>
>
>-Original Message-
>From: Volokh, Eugene 
>To: Law & Religion issues for Law Academics 
>Sent: Thu, Aug 1, 2013 7:56 pm
>Subject: RE: Contraception mandate
>
>
>
>Indeed, Marci didn’t say Doug was “lying,” but when one says 
> of a first-hand witness that the “history, as I knew it, was distinctive from 
> his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
> current statements,” the implicit accusation seems to me to be pretty clear.
> 
>But I should think that this could be clearly resolved:  If Marci wants to 
>produce some quotes from Doug that are at variance with his current 
>statements, that would be very interesting.  But until any such quotes are 
>produced, I’m inclined to trust Doug.
> 
>And I agree that we should discuss facts on the listserv without stooping to 
>namecalling.
> 
>Eugene
> 
>
>
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
>Sent: Thursday, August 01, 2013 4:41 PM
>To: religionlaw@lists.ucla.edu
>Subject: Re: Contraception mandate
>
> 
>Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
>was distinctive from his account.   I think we can discuss the facts 
>
>on the listserv without having to stoop to such namecalling.
>
> 
>
>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
>
>
>
> 
>
>-Original Mess

Re: Contraception mandate

[Douglas Laycock]

RLUIPA does not apply to fair housing laws because it applies only to land use 
regulation and institutionalized persons, and it exprssly defines land use 
regulation as zoning and landmarking. Period. No mystery to explain. 

My recollection is that that definition was added late in the process. I have 
not checked that. 

Before that amendment, neither I nor any other supporter assured opponents that 
RLPA would not apply to fair housing laws. The whole fight was fueled by fair 
housing laws.

There were negotiations about exempting large landlords and protecting small 
landlords. But these negotiations quickly broke down because the two sides were 
too far apart on what the size limit should be.

RLPA had other opponents, but the civil rights issue is what killed it. It is 
not true that it was doomed by its overbreadth. It was not even obvious at the 
time that it was doomed by the civil rights fight.

The Nadler Amendment to exclude civil rights claims was defeated in the House 
234-190. The unamended bill then passed the House 306-118. That lopsided yes 
vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. 
Rec. H5607-08. The bill then died in the Senate without a vote. 

Both sides in the debate over the Nadler Amendment, and in the earlier debates 
in committee, were fighting about a live issue. No one thought they were making 
post-enactment legislative history for RFRA. They were all acting on a common 
understanding about what the language copied from RFRA meant.

On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
 hamilto...@aol.com wrote:
>
>I was not particularly interested in solely Doug's statements at the time, but 
>rather his reasoning in his new piece.   Marc and now Eugene have personalized 
>this.
>There is no need for that.
>
>
>Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
>that the land use provisions were not intended to apply to the fair housing 
>(i.e., civil rights) laws.  
>Since the only legis history on RLUIPA was RLPA, that assumption (that the 
>civil rights laws were beyond the new statute) had to come from the RLPA 
>proceedings.   
>What is the missing piece that explains how Doug and Marc have explained the 
>history?
>
>
>
>
>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
>
>
>
>
>
>-Original Message-
>From: Volokh, Eugene 
>To: Law & Religion issues for Law Academics 
>Sent: Thu, Aug 1, 2013 7:56 pm
>Subject: RE: Contraception mandate
>
>
>
>Indeed, Marci didn’t say Doug was “lying,” but when one says 
> of a first-hand witness that the “history, as I knew it, was distinctive from 
> his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
> current statements,” the implicit accusation seems to me to be pretty clear.
> 
>But I should think that this could be clearly resolved:  If Marci wants to 
>produce some quotes from Doug that are at variance with his current 
>statements, that would be very interesting.  But until any such quotes are 
>produced, I’m inclined to trust Doug.
> 
>And I agree that we should discuss facts on the listserv without stooping to 
>namecalling.
> 
>Eugene
> 
>
>
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
>Sent: Thursday, August 01, 2013 4:41 PM
>To: religionlaw@lists.ucla.edu
>Subject: Re: Contraception mandate
>
> 
>Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
>was distinctive from his account.   I think we can discuss the facts 
>
>on the listserv without having to stoop to such namecalling.
>
> 
>
>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
>
>
>
> 
>
>-Original Message-
>From: Marc Stern 
>To: religionlaw 
>Sent: Thu, Aug 1, 2013 7:34 pm
>Subject: Re: Contraception mandate
>
>Saw it. In the next post, she accuses doug of lying to left wing groups about 
>RLPA and civil rights. I've responded defending Doug.
>Marc
> 
>
>
>
>
>
>
>___
>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 

RE: Contraception mandate

[Volokh, Eugene]

No, Marci.  You personalized this.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
There is no need for that.

Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
that the land use provisions were not intended to apply to the fair housing 
(i.e., civil rights) laws.
Since the only legis history on RLUIPA was RLPA, that assumption (that the 
civil rights laws were beyond the new statute) had to come from the RLPA 
proceedings.
What is the missing piece that explains how Doug and Marc have explained the 
history?


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<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Volokh, Eugene mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 1, 2013 7:56 pm
Subject: RE: Contraception mandate
Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.

But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.

And I agree that we should discuss facts on the listserv without stooping to 
namecalling.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu?>]
 On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Contraception mandate

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.

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<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Marc Stern mailto:ste...@ajc.org>>
To: religionlaw mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate
Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc


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Re: Contraception mandate

[hamilton02]

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
There is no need for that.


Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
that the land use provisions were not intended to apply to the fair housing 
(i.e., civil rights) laws.  
Since the only legis history on RLUIPA was RLPA, that assumption (that the 
civil rights laws were beyond the new statute) had to come from the RLPA 
proceedings.   
What is the missing piece that explains how Doug and Marc have explained the 
history?




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





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Thu, Aug 1, 2013 7:56 pm
Subject: RE: Contraception mandate



Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.
 
But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.
 
And I agree that we should discuss facts on the listserv without stooping to 
namecalling.
 
Eugene
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

 
Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts 

on the listserv without having to stoop to such namecalling.

 

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



 

-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc
 






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Re: Contraception mandate

[Rick Garnett]

Dear colleagues,

"Religious liberty" is, of course, a fundamental human right, and so it is not 
clear to me why it should be troubling or surprising that legal regimes would 
be embraced by human-rights advocates (like Marc, Doug, etc.) that respect that 
right by insisting, e.g., that majority-supported legislation (of any type) 
substantially burdening the exercise of that right be closely scrutinized.

Rick Garnett

Sent from my iPhone

On Aug 1, 2013, at 7:47 PM, "hamilto...@aol.com" 
mailto:hamilto...@aol.com>> wrote:

With all due respect, Marc, RLPA was doomed by many forces, not just the civil 
rights community.  The American Academy of Pediatrics, and many other leading 
organizations
for the protection of children took a very strong stand.  We lobbied Congress 
together as well (we didn't have "chairs").  The two sides were not in the same 
rooms at the same time, obviously.

Your defense of Doug does not answer the factual questions I have posed.   I 
have no idea what Doug has been saying to groups in private all these years, 
because, as I
pointed out, those discussions have not been public, but rather behind closed 
doors among fellow lobbyists on that side.

Where in the RFRA legislative history (which is the only one that can be taken 
into account on any issue other than land use or prisons), is there any  
mention of for-profit
corporations obtaining its capacious rights?

I also find it very surprising at the idea that the civil rights groups should 
be mollfied when told that their interests would be "compelling interests," 
given that the least restrictive means test was still in play, and, as urged by 
most litigants on that side, virtually insuperable.



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
[http://sol-reform.com/fb.png]
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read the Web archives; and list members can (rightly or wrongly) forward the 
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RE: Contraception mandate

[Volokh, Eugene]

Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.

But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.

And I agree that we should discuss facts on the listserv without stooping to 
namecalling.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.

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<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Marc Stern mailto:ste...@ajc.org>>
To: religionlaw mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate
Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc

___
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Re: Citations to Listserv posts/Contraception mandate

[Steven Jamar]

I think citing to a listserv discussion without confirming with the author is 
bad form unless one is simply crediting an idea that one is using that one 
first learned on the listserv.  I think using an idea posted as a foil (or 
worse) without giving the author the opportunity to clarify and extend his or 
her remarks is particularly inappropriate.

But, for the most part, I don't think any of us are so important or what we 
talk about so valuable or brilliant that much harm could ever be done by such 
behavior.  Pre-tenure folk may want to be a bit more circumspect, or those who 
are really concerned about their reputations among a tiny insignificant (for 
the most part) crowd, but for most of us, I don't think it matters one whit.

Steve


-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

“It’s all about you, using your own mind, without any method or schema, to 
restore order from chaos. And once you have, you can sit back and say, ‘Hey, 
the rest of my life may be a disaster, but at least I have a solution.’ ”
Marcel Danesi, in an interview about his book, “The Puzzle Instinct: The 
Meaning of Puzzles in Human Life.”

On Aug 1, 2013, at 4:10 PM, Marty Lederman  wrote:

> Doug Laycock has just posted this very interesting article to SSRN on 
> "Religious Liberty and the Culture Wars" that I recommend (though I would 
> certainly take issue with parts of it):
> 
> http://papers.ssrn.com/abstract=2304427
> 
> Doug's piece prompted me to wonder about a non-substantive point, however, 
> about which I thought an interjection might be in order:
> 
> I was a bit surprised to see, in note 155 of his essay, that Doug cites a 
> couple of CONLAWPROF listserv posts of mine as evidence of a particular 
> argument about religious burdens that some have "suggested"--an argument that 
> Doug quite forthrightly condemns.  FWIW, I don't think Doug has conveyed the 
> true nature of the argument I was making -- it was a limited argument 
> specifically in response to one of his -- but that's ok, because anyone who 
> cares at all about what I think (or thought one day last February) will go to 
> the posts themselves to see the context and the specific claims.  And, to his 
> credit, Doug quite appropriately notes that in the second of the two posts, I 
> specifically disclaimed the argument that he uses the first of my posts to 
> illustrate.  
> 
> But I wanted to raise a broader question.  Doug also cites to posts by Marci 
> Hamilton, and Jonathan Mallamud, from the same thread.  All of these cites 
> raise a caution and a question.  (The posts in question were on CONLAWPROF, 
> but the point is the same w/r/t ReligionLaw.)  The caution:  You should all 
> be aware, if you aren't already, that all that we post here is available 
> online for all the world to see . . . 'til the end of time!  That hasn't 
> really deterred me at all from posting my views, even when they are tentative 
> and somewhat provocative or controversial -- and I hope the same is true for 
> the rest of you, too.  (I just did a very quick Westlaw search for 
> "lists.ucla.edu," and found twelve cites to posts on these two listservs, 
> some of them laudatory (or giving the author credit for the first 
> articulation of a point):  One post each to Tom Berg, Josh Chafetz, Doug 
> himself, Chris Lund, Chip Lupu, and Eugene Volokh; two cites to Mark Tushnet; 
> and four cites to yours truly (what does this say about me?!)  For all I 
> know, some or all of the authors checked with the cited writers before citing 
> -- I don't recall in my own cases.)
> 
> The question:  What is the "etiquette," as it were, of citing listserv posts 
> and thereby attributing views to one another?  My tentative view is that it's 
> ok -- after all, non-listserv members can and will do so, and I trust all of 
> you to try your best to fairly characterize what I and others have said, in 
> good faith.  But I have a lingering concern that such a practice will deter 
> candid engagement on the listservs.  I'm not sure that's entirely a bad 
> thing, even if it is occurring -- my general view is that one should always 
> assume that what we write will appear on the front page of the New York 
> Times, because that makes for more careful, more thoughtful writing.  But of 
> course the listservs serve as a kind of real-time conversation, too; and it 
> would be a shame if people became reluctant to engage in a back-and-forth for 
> fear that their posts will later be cited.
> 
> I sent these thoughts to Doug, who asked me to share with you that he 
> considered the question, and cited the posts because:
> 
> I thought that 1) these posts are archived on a publicly available website, 
> 2) we had talked about that fact on the list from time to time, 3) the 
> contracep

Re: Contraception mandate

[hamilton02]

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.


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





-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate


Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc
 

From: Saperstein, David [mailto:dsaperst...@rac.org]
Sent: Thursday, August 01, 2013 07:25 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate
 



Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton"  wrote:



I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.


Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start. 

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 






On Aug 1, 2013, at 5:39 PM, James Oleske  wrote:




Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.


But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).





On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock  wrote:


Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”
 

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
434-243-8546

 

From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

 
Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.
 
Supporters didnot say that for-profit businesses would not have a RLPA defense. 
This whole issue with respect to RLPA was triggered by a series of cases about 
for-profit landlords and unmarried opposite-sex couples, especiallyThomas v. 
Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later 
vacated on other grounds, but the opinion is still on Westlaw.
 
If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.
 
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
434-243-8546
 
From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate
 


[snip]

Re: Contraception mandate

[hamilton02]

With all due respect, Marc, RLPA was doomed by many forces, not just the civil 
rights community.  The American Academy of Pediatrics, and many other leading 
organizations
for the protection of children took a very strong stand.  We lobbied Congress 
together as well (we didn't have "chairs").  The two sides were not in the same 
rooms at the same time, obviously.  


Your defense of Doug does not answer the factual questions I have posed.   I 
have no idea what Doug has been saying to groups in private all these years, 
because, as I
pointed out, those discussions have not been public, but rather behind closed 
doors among fellow lobbyists on that side.


Where in the RFRA legislative history (which is the only one that can be taken 
into account on any issue other than land use or prisons), is there any  
mention of for-profit
corporations obtaining its capacious rights?


I also find it very surprising at the idea that the civil rights groups should 
be mollfied when told that their interests would be "compelling interests," 
given that the least restrictive means test was still in play, and, as urged by 
most litigants on that side, virtually insuperable.






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





-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:29 pm
Subject: Re: Contraception mandate


Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together  when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
 One can disagree with that position, but it is flat out wrong to accuse Doug 
of misleading anyone. 
Marc Stern


 

From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate
 

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.


I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my Justia.com 
column on the Hobby Lobby decision, had the members been informed that RFRA 
would open doors for Wal-Mart to get around laws, RFRA would have taken a very 
different path.


Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.   


Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.  


All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.


Marci




Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 






On Aug 1, 2013, at 2:35 PM, James Oleske  wrote:




A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.


First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words: 



"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"



Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right.

Re: Contraception mandate

[Marc Stern]

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc

From: Saperstein, David [mailto:dsaperst...@rac.org]
Sent: Thursday, August 01, 2013 07:25 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate



Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> wrote:

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 5:39 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.

But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.

Supporters did not say that for-profit businesses would not have a RLPA 
defense. This whole issue with respect to RLPA was triggered by a series of 
cases about for-profit landlords and unmarried opposite-sex couples, especially 
Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was 
later vacated on other grounds, but the opinion is still on Westlaw.

If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

[snip]

One final question for Professor Laycock: In footnote 67 of your piece, you 
point to the legislative history of RLPA as evidence that RFRA covers 
for-profits, writing:
"Both sides in that debate believed that if enacted, RLPA would protect 
for-profit businesses from civil rights claims that substantially burdene

Re: Contraception mandate

[Saperstein, David]

Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> wrote:

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 5:39 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.

But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.

Supporters did not say that for-profit businesses would not have a RLPA 
defense. This whole issue with respect to RLPA was triggered by a series of 
cases about for-profit landlords and unmarried opposite-sex couples, especially 
Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was 
later vacated on other grounds, but the opinion is still on Westlaw.

If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

[snip]

One final question for Professor Laycock: In footnote 67 of your piece, you 
point to the legislative history of RLPA as evidence that RFRA covers 
for-profits, writing:
"Both sides in that debate believed that if enacted, RLPA would protect 
for-profit businesses from civil rights claims that substantially burdened the 
owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its 
operative language was identical to the language of RFRA. The supporters of a 
civil-rights exception to RLPA were seeking an amendment that they knew they 
needed, and that had not been part of RFRA."

Did none of the supporters of RL

Re: Contraception mandate

[Marc Stern]

Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
One can disagree with that position, but it is flat out wrong to accuse Doug of 
misleading anyone.
Marc Stern



From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my 
Justia.com<http://Justia.com> column on the Hobby Lobby decision, had the 
members been informed that RFRA would open doors for Wal-Mart to get around 
laws, RFRA would have taken a very different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 2:35 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words:

"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"

Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about religious issues. What is most striking to me 
about about this piece is that it flatly rejects the central talking point of 
some of those on the right who have relied most heavily on Professor Laycock's 
scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with 
overheated claims on both sides of the debate, but I'm most interested in the 
doctrinal analysis Professor Dane offers in place of the heat. In particular, 
on the issue of exemptions for for-profit institutions, Professor Dane's 
analysis begins with a line that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:

"I do think that the for-profit status of some religious objectors might be 
relevant, but at the back end – in the analysis of compelling interest – rather 
than the front end determination of substantial burden."

Professor Dane then notes that arguments can be made for and against making 
distinctions between small and large businesses in determining the government's 
interest in denying exemptions (I would only add that the denial of an 
exemption to a very small employer in Lee may be relevant to further 
exploration of these arguments). Professor Dane concludes his analysis by 
stating that a "vital proposition in the conception of religious liberty" is 
that

Re: Contraception mandate

[Marc Stern]

Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
One can disagree with that position, but it is flat out wrong to accuse Doug of 
misleading anyone.
Marc Stern



From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my 
Justia.com<http://Justia.com> column on the Hobby Lobby decision, had the 
members been informed that RFRA would open doors for Wal-Mart to get around 
laws, RFRA would have taken a very different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 1, 2013, at 2:35 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words:

"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"

Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about religious issues. What is most striking to me 
about about this piece is that it flatly rejects the central talking point of 
some of those on the right who have relied most heavily on Professor Laycock's 
scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with 
overheated claims on both sides of the debate, but I'm most interested in the 
doctrinal analysis Professor Dane offers in place of the heat. In particular, 
on the issue of exemptions for for-profit institutions, Professor Dane's 
analysis begins with a line that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:

"I do think that the for-profit status of some religious objectors might be 
relevant, but at the back end – in the analysis of compelling interest – rather 
than the front end determination of substantial burden."

Professor Dane then notes that arguments can be made for and against making 
distinctions between small and large businesses in determining the government's 
interest in denying exemptions (I would only add that the denial of an 
exemption to a very small employer in Lee may be relevant to further 
exploration of these arguments). Professor Dane concludes his analysis by 
stating that a "vital proposition in the conception of religious liberty" is 
that

Re: Contraception mandate

[Marci Hamilton]

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start. 

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 1, 2013, at 5:39 PM, James Oleske  wrote:

> Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
> were part of the RLPA discussion. I see from a quick look at the RLPA House 
> Report that they were explicitly discussed there, and there is a footnote in 
> the same general discussion rejecting the argument that "business 
> corporations" would be categorically excluded from RPLA protection.
> 
> But to be clear, my question isn't whether supporters of RLPA thought 
> for-profits would be categorically excluded from protection. It's clear they 
> didn't think that. My question is whether, when fears were raised of 
> commercial businesses being shielded by RLPA from civil rights laws, 
> supporters of RLPA argued that those defenses could be balanced and limited 
> by the courts consistent with Lee and its solicitude for the competing rights 
> of employees in the commercial context. 
> 
> It sounds like the answer is probably "no." The House report does not address 
> that issue and instead focuses on the issue of whether antidiscrimination 
> qualifies as a compelling interest, with the report's opinion seeming to be 
> "yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
> specifically the split in the lower courts over application of the compelling 
> interest test in the marital status cases like Thomas and Swanner, but not 
> expressing an opinion as to how those cases should turn out).
> 
> On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock  
> wrote:
>> Sorry. The first sentence below was supposed to say “there were cases that 
>> the religious objectors deserved to win.”
>> 
>>  
>> 
>> Douglas Laycock
>> 
>> Robert E. Scott Distinguished Professor of Law
>> 
>> University of Virginia Law School
>> 
>> 580 Massie Road
>> 
>> Charlottesville, VA  22903
>> 
>>  434-243-8546
>> 
>>  
>> 
>> From: religionlaw-boun...@lists.ucla.edu 
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
>> Sent: Thursday, August 01, 2013 3:24 PM
>> To: 'Law & Religion issues for Law Academics'
>> Subject: RE: Contraception mandate
>> 
>>  
>> 
>> Supporters of RLPA said that civil rights claimants would win most of the 
>> cases on compelling interest grounds, but that civil rights had come to be a 
>> very broad  category, and there the religious objectors deserved to win. 
>> They said the RLPA standard should be uniformly applied to all cases, as 
>> with the RFRA standard.
>> 
>>  
>> 
>> Supporters did not say that for-profit businesses would not have a RLPA 
>> defense. This whole issue with respect to RLPA was triggered by a series of 
>> cases about for-profit landlords and unmarried opposite-sex couples, 
>> especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. 
>> Thomas was later vacated on other grounds, but the opinion is still on 
>> Westlaw.
>> 
>>  
>> 
>> If these articles and Professor Oleske’s post trigger a substantial 
>> discussion, I regret that I will not be much of a participant. I’m on 
>> deadline and behind the curve with another major project.
>> 
>>  
>> 
>> Douglas Laycock
>> 
>> Robert E. Scott Distinguished Professor of Law
>> 
>> University of Virginia Law School
>> 
>> 580 Massie Road
>> 
>> Charlottesville, VA  22903
>> 
>>  434-243-8546
>> 
>>  
>> 
>> From: religionlaw-boun...@lists.ucla.edu 
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
>> Sent: Thursday, August 01, 2013 2:36 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Contraception mandate
>> 
> [snip]
>  
>> One final question for Professor Laycock: In footnote 67 of your piece, you 
>> point to the legislative history of RLPA as evidence that RFRA covers 
>> for-profits, writin

Citations to Listserv posts/Contraception mandate

[Marty Lederman]

Doug Laycock has just posted this very interesting article to SSRN on
"Religious Liberty and the Culture Wars" that I recommend (though I would
certainly take issue with parts of it):

http://papers.ssrn.com/abstract=2304427

Doug's piece prompted me to wonder about a non-substantive point, however,
about which I thought an interjection might be in order:

I was a bit surprised to see, in note 155 of his essay, that Doug cites a
couple of CONLAWPROF listserv posts of mine as evidence of a particular
argument about religious burdens that some have "suggested"--an argument
that Doug quite forthrightly condemns.  FWIW, I don't think Doug has
conveyed the true nature of the argument I was making -- it was a limited
argument specifically in response to one of his -- but that's ok, because
anyone who cares at all about what I think (or thought one day last
February) will go to the posts themselves to see the context and the
specific claims.  And, to his credit, Doug quite appropriately notes that
in the second of the two posts, I specifically disclaimed the argument that
he uses the first of my posts to illustrate.

But I wanted to raise a broader question.  Doug also cites to posts by
Marci Hamilton, and Jonathan Mallamud, from the same thread.  All of these
cites raise a caution and a question.  (The posts in question were on
CONLAWPROF, but the point is the same w/r/t ReligionLaw.)  The caution:
You should all be aware, if you aren't already, that all that we post here
is available online for all the world to see . . . 'til the end of time!
That hasn't really deterred me at all from posting my views, even when they
are tentative and somewhat provocative or controversial -- and I hope the
same is true for the rest of you, too.  (I just did a very quick Westlaw
search for "lists.ucla.edu," and found twelve cites to posts on these two
listservs, some of them laudatory (or giving the author credit for the
first articulation of a point):  One post each to Tom Berg, Josh Chafetz,
Doug himself, Chris Lund, Chip Lupu, and Eugene Volokh; two cites to Mark
Tushnet; and four cites to yours truly (what does this say about me?!)  For
all I know, some or all of the authors checked with the cited writers
before citing -- I don't recall in my own cases.)

The question:  What is the "etiquette," as it were, of citing listserv
posts and thereby attributing views to one another?  My tentative view is
that it's ok -- after all, non-listserv members can and will do so, and I
trust all of you to try your best to fairly characterize what I and others
have said, in good faith.  But I have a lingering concern that such a
practice will deter candid engagement on the listservs.  I'm not sure
that's entirely a bad thing, even if it is occurring -- my general view is
that one should always assume that what we write will appear on the front
page of the New York Times, because that makes for more careful, more
thoughtful writing.  But of course the listservs serve as a kind of
real-time conversation, too; and it would be a shame if people became
reluctant to engage in a back-and-forth for fear that their posts will
later be cited.

I sent these thoughts to Doug, who asked me to share with you that he
considered the question, and cited the posts because:

I thought that 1) these posts are archived on a publicly available website,
2) we had talked about that fact on the list from time to time, 3) the
contraceptive mandate was relatively new and some of these arguments had
not made it into published articles yet (at least that I knew about), and
4) I was talking about a broad shift in attitudes and these less formal
writings tended to reveal what people really felt.


What do others think?  Should the informal, unpoliced norm be that we won't
cite one another's posts without at least giving the author a head's up . .
. or perhaps, even, allowing the author a veto?  Would it depend on how the
cite is being used?

What I'm most interested in is whether any of you would be chilled *in an
unfortunate way* from posting now that you know you might be cited.  (As
noted above, I think some "chilling" is a good thing, insofar as it prompts
more thoughtful writing.)

Thanks in advance,

Marty
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: Contraception mandate

[Marci Hamilton]

gt; I've previously criticized the Tenth Circuit majority in Hobby Lobby for 
> failing to address this language from Lee. Since then, the Third Circuit 
> majority in Conestoga Wood -- while coming to the opposite conclusion of the 
> Tenth Circuit -- has likewise neglected to engage the relevant language from 
> Lee (the dissents in both cases do at least quote the language, but neither 
> provides a satisfying discussion of its relevance). Admittedly, the result in 
> Lee is arguably in some tension with language in O'Centro, which itself is 
> arguably in some tension with language in Cutter, but if we're going to get 
> out of this doctrinal thicket, it seems to me that courts and commentators 
> are going to have to carefully work through and (if possible) reconcile the 
> language and results in all three of those cases.
> 
> One final question for Professor Laycock: In footnote 67 of your piece, you 
> point to the legislative history of RLPA as evidence that RFRA covers 
> for-profits, writing: 
> 
> "Both sides in that debate believed that if enacted, RLPA would protect 
> for-profit businesses from civil rights claims that substantially burdened 
> the owner’s free exercise of religion. RLPA was in pari materia with RFRA, 
> and its operative language was identical to the language of RFRA. The 
> supporters of a civil-rights exception to RLPA were seeking an amendment that 
> they knew they needed, and that had not been part of RFRA." 
> 
> Did none of the supporters of RLPA try to reassure the civil rights community 
> that they did not need an exception because the Supreme Court's pre-Smith 
> jurisprudence that was being restored had already imposed limitations on 
> exemptions in the commercial arena? I haven't studied the legislative history 
> of RLPA, but I would have expected that argument to have been made (along 
> with the argument that the Court's pre-Smith jurisprudence already found that 
> preventing certain types of discrimination is a compelling state interest 
> that can trump religious exemption claims). 
> 
> Best,
> 
> Jim
> 
> On Thu, Aug 1, 2013 at 7:53 AM, Douglas Laycock  wrote:
> 
>> By coincidence, I just posted a related piece, broader than Perry’s in some 
>> ways, narrower in others:
>> 
>> 
>> http://papers.ssrn.com/abstract=2304427
>> 
>> 
>> The piece is framed in terms of the larger culture wars, and does not offer 
>> a full doctrinal analysis of the contraception litigation. But buried in the 
>> middle is a fairly detailed analysis of the recently published Final Rules 
>> on the contraception mandate, which also “tries to speak sanely.”
>> 
> 
> ***
>  
>> From: religionlaw-boun...@lists.ucla.edu 
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane
>> Sent: Thursday, August 01, 2013 10:27 AM
>> To: religionlaw@lists.ucla.edu
>> Subject: Contraception mandate
>> 
>> 
>> 
>> Hi all,
>> 
>> I've posted a short essay -- half of a projected exchanged -- that tries to 
>> speak sanely about the contraceptive mandate debate.  The piece offers a 
>> doctrinal analysis, but also explores how the debate -- and in particular 
>> the overblown claims by both sides -- "suggest some imperfectly articulated 
>> undercurrents in the current American conversation about religion and the 
>> law."  See http://ssrn.com/abstract=2296635  
>> 
>> Comments would, of course, be welcome.
>> 
>>Perry
>> 
> ___
> 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: Contraception mandate

[James Oleske]

Thanks for the reminder that Thomas, Swanner, and other similar housing
cases were part of the RLPA discussion. I see from a quick look at the RLPA
House Report that they were explicitly discussed there, and there is a
footnote in the same general discussion rejecting the argument that
"business corporations" would be categorically excluded from RPLA
protection.

But to be clear, my question isn't whether supporters of RLPA thought
for-profits would be categorically excluded from protection. It's clear
they didn't think that. My question is whether, when fears were raised of
commercial businesses being shielded by RLPA from civil rights laws,
supporters of RLPA argued that those defenses could be balanced and limited
by the courts consistent with Lee and its solicitude for the competing
rights of employees in the commercial context.

It sounds like the answer is probably "no." The House report does not
address that issue and instead focuses on the issue of whether
antidiscrimination qualifies as a compelling interest, with the report's
opinion seeming to be "yes" for race, "usually yes" for sex, and "TBD" for
everything else (citing specifically the split in the lower courts over
application of the compelling interest test in the marital status cases
like Thomas and Swanner, but not expressing an opinion as to how those
cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock wrote:

> Sorry. The first sentence below was supposed to say “there were cases that
> the religious objectors deserved to win.”
>
> ** **
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock
> *Sent:* Thursday, August 01, 2013 3:24 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Contraception mandate
>
> ** **
>
> Supporters of RLPA said that civil rights claimants would win most of the
> cases on compelling interest grounds, but that civil rights had come to be
> a very broad  category, and there the religious objectors deserved to win.
> They said the RLPA standard should be uniformly applied to all cases, as
> with the RFRA standard.
>
> ** **
>
> Supporters did *not* say that for-profit businesses would not have a RLPA
> defense. This whole issue with respect to RLPA was triggered by a series of
> cases about for-profit landlords and unmarried opposite-sex couples,
> especially *Thomas v. Anchorage Human Rights Commission* in the Ninth
> Circuit. *Thomas* was later vacated on other grounds, but the opinion is
> still on Westlaw.
>
> ** **
>
> If these articles and Professor Oleske’s post trigger a substantial
> discussion, I regret that I will not be much of a participant. I’m on
> deadline and behind the curve with another major project.
>
> ** **
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546****
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *James Oleske
> *Sent:* Thursday, August 01, 2013 2:36 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Contraception mandate
>
>
>
[snip]


> One final question for Professor Laycock: In footnote 67 of your piece,
> you point to the legislative history of RLPA as evidence that RFRA covers
> for-profits, writing:
>
> "Both sides in that debate believed that if enacted, RLPA would protect
> for-profit businesses from civil rights claims that substantially burdened
> the owner’s free exercise of religion. RLPA was in pari materia with RFRA,
> and its operative language was identical to the language of RFRA. The
> supporters of a civil-rights exception to RLPA were seeking an amendment
> that they knew they needed, and that had not been part of RFRA." 
>
>
> Did none of the supporters of RLPA try to reassure the civil rights
> community that they did not need an exception because the Supreme Court's
> pre-Smith jurisprudence that was being restored had already imposed
> limitations on exemptions in the commercial arena? I haven't studied the
> legislative history of RLPA, but I would have expected that argument to
> have been made (along with the argument that the Court's pre-Smith
> jurisprudence already found that p

RE: Contraception mandate

[Douglas Laycock]

Sorry. The first sentence below was supposed to say "there were cases that
the religious objectors deserved to win."

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

 

Supporters of RLPA said that civil rights claimants would win most of the
cases on compelling interest grounds, but that civil rights had come to be a
very broad  category, and there the religious objectors deserved to win.
They said the RLPA standard should be uniformly applied to all cases, as
with the RFRA standard.

 

Supporters did not say that for-profit businesses would not have a RLPA
defense. This whole issue with respect to RLPA was triggered by a series of
cases about for-profit landlords and unmarried opposite-sex couples,
especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit.
Thomas was later vacated on other grounds, but the opinion is still on
Westlaw.

 

If these articles and Professor Oleske's post trigger a substantial
discussion, I regret that I will not be much of a participant. I'm on
deadline and behind the curve with another major project.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

 

A few comments and one question upon an initial read of Professor Laycock
and Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to
overstate the importance of one of the nation's most prominent and respected
advocates for a broad conception of religious liberty penning the following
words: 

 

"These Final Rules offer a serious plan to protect religious liberty without
depriving women of contraception These Final Rules are utterly
inconsistent with the common charge that the Obama Administration is engaged
in a 'war on religion.'"

 

Professor Laycock's piece does not spare the political left from similar
rebukes -- indeed, groups on the political left come in for more extensive
criticism in the "Growing Hostility" section of the piece than groups on the
political right. But Professor Laycock has previously offered strong
criticism of rhetoric on the left about religious issues. What is most
striking to me about about this piece is that it flatly rejects the central
talking point of some of those on the right who have relied most heavily on
Professor Laycock's scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with
overheated claims on both sides of the debate, but I'm most interested in
the doctrinal analysis Professor Dane offers in place of the heat. In
particular, on the issue of exemptions for for-profit institutions,
Professor Dane's analysis begins with a line that, while not explicitly
discussing the case, seems to track the approach of the Court in United
States v. Lee: 

"I do think that the for-profit status of some religious objectors might be
relevant, but at the back end - in the analysis of compelling interest -
rather than the front end determination of substantial burden." 


Professor Dane then notes that arguments can be made for and against making
distinctions between small and large businesses in determining the
government's interest in denying exemptions (I would only add that the
denial of an exemption to a very small employer in Lee may be relevant to
further exploration of these arguments). Professor Dane concludes his
analysis by stating that a "vital proposition in the conception of religious
liberty" is that "believers have at least a presumptive right to live out
the commitments of their faith across the whole range of human activity,
including the world of business and commerce."

It is this last point that I think would benefit most from being expanded to
account for the doctrinal significance of Lee, where the Court identified a
competing presumption that comes into play in for-profit cases due to impact
on third parties:

"When followers of a particular sect enter into commercial activity as a
matter of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes
which are binding

RE: Contraception mandate

[Douglas Laycock]

Supporters of RLPA said that civil rights claimants would win most of the
cases on compelling interest grounds, but that civil rights had come to be a
very broad  category, and there the religious objectors deserved to win.
They said the RLPA standard should be uniformly applied to all cases, as
with the RFRA standard.

 

Supporters did not say that for-profit businesses would not have a RLPA
defense. This whole issue with respect to RLPA was triggered by a series of
cases about for-profit landlords and unmarried opposite-sex couples,
especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit.
Thomas was later vacated on other grounds, but the opinion is still on
Westlaw.

 

If these articles and Professor Oleske's post trigger a substantial
discussion, I regret that I will not be much of a participant. I'm on
deadline and behind the curve with another major project.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

 

A few comments and one question upon an initial read of Professor Laycock
and Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to
overstate the importance of one of the nation's most prominent and respected
advocates for a broad conception of religious liberty penning the following
words: 

 

"These Final Rules offer a serious plan to protect religious liberty without
depriving women of contraception These Final Rules are utterly
inconsistent with the common charge that the Obama Administration is engaged
in a 'war on religion.'"

 

Professor Laycock's piece does not spare the political left from similar
rebukes -- indeed, groups on the political left come in for more extensive
criticism in the "Growing Hostility" section of the piece than groups on the
political right. But Professor Laycock has previously offered strong
criticism of rhetoric on the left about religious issues. What is most
striking to me about about this piece is that it flatly rejects the central
talking point of some of those on the right who have relied most heavily on
Professor Laycock's scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with
overheated claims on both sides of the debate, but I'm most interested in
the doctrinal analysis Professor Dane offers in place of the heat. In
particular, on the issue of exemptions for for-profit institutions,
Professor Dane's analysis begins with a line that, while not explicitly
discussing the case, seems to track the approach of the Court in United
States v. Lee: 

"I do think that the for-profit status of some religious objectors might be
relevant, but at the back end - in the analysis of compelling interest -
rather than the front end determination of substantial burden." 


Professor Dane then notes that arguments can be made for and against making
distinctions between small and large businesses in determining the
government's interest in denying exemptions (I would only add that the
denial of an exemption to a very small employer in Lee may be relevant to
further exploration of these arguments). Professor Dane concludes his
analysis by stating that a "vital proposition in the conception of religious
liberty" is that "believers have at least a presumptive right to live out
the commitments of their faith across the whole range of human activity,
including the world of business and commerce."

It is this last point that I think would benefit most from being expanded to
account for the doctrinal significance of Lee, where the Court identified a
competing presumption that comes into play in for-profit cases due to impact
on third parties:

"When followers of a particular sect enter into commercial activity as a
matter of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes
which are binding on others in that activity. Granting an exemption from
social security taxes to an employer operates to impose the employer's
religious faith on the employees." 

 

I've previously criticized the Tenth Circuit majority in Hobby Lobby for
failing to address this language from Lee. Since then, the Third Circuit
majority in Conestoga Wood -- while coming to the opposite conclusion of the
Tenth Circuit -- has likewise neglected to engage the relevant language from
Lee (the dissents in both cases do at least quote the language, but neither
provides a satisfying discussion of its relevance)

Re: Contraception mandate

[James Oleske]

d have expected that argument to
have been made (along with the argument that the Court's pre-Smith
jurisprudence already found that preventing certain types of discrimination
is a compelling state interest that can trump religious exemption claims).

Best,

Jim

On Thu, Aug 1, 2013 at 7:53 AM, Douglas Laycock wrote:

By coincidence, I just posted a related piece, broader than Perry’s in some
> ways, narrower in others:
>
> http://papers.ssrn.com/abstract=2304427
>
> The piece is framed in terms of the larger culture wars, and does not
> offer a full doctrinal analysis of the contraception litigation. But buried
> in the middle is a fairly detailed analysis of the recently published Final
> Rules on the contraception mandate, which also “tries to speak sanely.”
>
>
***


> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Perry Dane
> *Sent:* Thursday, August 01, 2013 10:27 AM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Contraception mandate
>
>
> Hi all,
>
> I've posted a short essay -- half of a projected exchanged -- that tries
> to speak sanely about the contraceptive mandate debate.  The piece offers a
> doctrinal analysis, but also explores how the debate -- and in particular
> the overblown claims by both sides -- "suggest some imperfectly articulated
> undercurrents in the current American conversation about religion and the
> law."  See http://ssrn.com/abstract=2296635
>
> Comments would, of course, be welcome.
>
>Perry
>
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RE: Contraception mandate

[Berg, Thomas C.]

I hesitate a bit to pitch my piece here, since it could accelerate a trend that 
we might not want if the list is otherwise active; but since it's not active 
for now, I'll refer to my own new piece, which is likewise on (part of) the 
mandate and the culture wars and aims to express a certain position outside the 
familiar poles: "progressive arguments for the freedom of religious 
organizations."  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268824



-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/>


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [dlayc...@virginia.edu]
Sent: Thursday, August 01, 2013 9:53 AM
To: d...@crab.rutgers.edu; 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

By coincidence, I just posted a related piece, broader than Perry’s in some 
ways, narrower in others:

http://papers.ssrn.com/abstract=2304427

The piece is framed in terms of the larger culture wars, and does not offer a 
full doctrinal analysis of the contraception litigation. But buried in the 
middle is a fairly detailed analysis of the recently published Final Rules on 
the contraception mandate, which also “tries to speak sanely.”



Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane
Sent: Thursday, August 01, 2013 10:27 AM
To: religionlaw@lists.ucla.edu
Subject: Contraception mandate


Hi all,

I've posted a short essay -- half of a projected exchanged -- that tries to 
speak sanely about the contraceptive mandate debate.  The piece offers a 
doctrinal analysis, but also explores how the debate -- and in particular the 
overblown claims by both sides -- "suggest some imperfectly articulated 
undercurrents in the current American conversation about religion and the law." 
 See http://ssrn.com/abstract=2296635

Comments would, of course, be welcome.

   Perry

*



Perry Dane

Professor of Law

Rutgers University School of Law



d...@crab.rutgers.edu<mailto:d...@crab.rutgers.edu>



Bio: www.camlaw.rutgers.edu/bio/925/<http://www.camlaw.rutgers.edu/bio/925/>

SSRN Author page: http://www.ssrn.com/author=48596

Academia.edu page: rutgers.academia.edu/PerryDane



*
___
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RE: Contraception mandate

[Douglas Laycock]

By coincidence, I just posted a related piece, broader than Perry’s in some 
ways, narrower in others:

 

http://papers.ssrn.com/abstract=2304427

 

The piece is framed in terms of the larger culture wars, and does not offer a 
full doctrinal analysis of the contraception litigation. But buried in the 
middle is a fairly detailed analysis of the recently published Final Rules on 
the contraception mandate, which also “tries to speak sanely.”

 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane
Sent: Thursday, August 01, 2013 10:27 AM
To: religionlaw@lists.ucla.edu
Subject: Contraception mandate

 

Hi all,

I've posted a short essay -- half of a projected exchanged -- that tries to 
speak sanely about the contraceptive mandate debate.  The piece offers a 
doctrinal analysis, but also explores how the debate -- and in particular the 
overblown claims by both sides -- "suggest some imperfectly articulated 
undercurrents in the current American conversation about religion and the law." 
 See http://ssrn.com/abstract=2296635  

Comments would, of course, be welcome.

   Perry

*
 
Perry Dane
Professor of Law 
Rutgers University School of Law
 
d...@crab.rutgers.edu <mailto:d...@crab.rutgers.edu>  
 
Bio: www.camlaw.rutgers.edu/bio/925/ <http://www.camlaw.rutgers.edu/bio/925/>  
SSRN Author page: http://www.ssrn.com/author=48596
Academia.edu page: rutgers.academia.edu/PerryDane
 
*
___
To post, send message to Religionlaw@lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can 
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Contraception mandate

[Perry Dane]

 

Hi all, 

I've posted a short essay -- half of a projected exchanged
-- that tries to speak sanely about the contraceptive mandate debate.
The piece offers a doctrinal analysis, but also explores how the debate
-- and in particular the overblown claims by both sides -- "suggest some
imperfectly articulated undercurrents in the current American
conversation about religion and the law." See
http://ssrn.com/abstract=2296635 

Comments would, of course, be
welcome. 

 Perry 

*

Perry
Dane
Professor of Law 
Rutgers University School of
Law

d...@crab.rutgers.edu 

Bio: www.camlaw.rutgers.edu/bio/925/ 
SSRN
Author page: http://www.ssrn.com/author=48596
Academia.edu page:
rutgers.academia.edu/PerryDane

*

___
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RE: The contraception mandate under Empoyment Division v Smith

[Pybas, Kevin M]

I'm very late to this thread but does anyone know where I might find a list of 
parties exempt, wholly or partially, from the health care reform law? I 
believe, for example, that the Amish are exempt. But am interested in the 
complete exemption picture, so will appreciate any guidance anyone can offer.

Thanks.
Kevin Pybas
Missouri State University

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Saturday, February 11, 2012 10:53 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The contraception mandate under Empoyment Division v Smith

The first claim in the pending complaints is RFRA, which of course completely 
avoids the Smith problem.  The free exercise count alleges that there are both 
statutory and administrative exceptions that affect tens of millions of 
Americans who will get no coverage, or less than full coverage, from their 
employers, so that the law is not neutral and generally applicable. I have not 
looked at any of these provisions. But the employers who are permitted to 
provide less than full coverage seems the most powerful example here. These 
exceptions go not only to general applicability, but also to the compelling 
interest argument under both RFRA and the Free Exercise Clause

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

___
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RE: The contraception mandate under Empoyment Division v Smith

[Rick Garnett]

Dear colleagues,

Here is the complaint, filed today by the University of Notre Dame, challenging 
the mandate on RFRA, FEC, and other grounds.  Among other things, it has the 
information (I think) that Kevin is asking about.

http://opac.nd.edu/assets/69013/hhs_complaint.pdf

Best,

Rick

Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780

574-631-6981 (w)
574-276-2252 (cell)

SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Pybas, Kevin M
Sent: Monday, May 21, 2012 11:13 AM
To: Law & Religion issues for Law Academics
Subject: RE: The contraception mandate under Empoyment Division v Smith

I'm very late to this thread but does anyone know where I might find a list of 
parties exempt, wholly or partially, from the health care reform law? I 
believe, for example, that the Amish are exempt. But am interested in the 
complete exemption picture, so will appreciate any guidance anyone can offer.

Thanks.
Kevin Pybas
Missouri State University

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Saturday, February 11, 2012 10:53 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: The contraception mandate under Empoyment Division v Smith

The first claim in the pending complaints is RFRA, which of course completely 
avoids the Smith problem.  The free exercise count alleges that there are both 
statutory and administrative exceptions that affect tens of millions of 
Americans who will get no coverage, or less than full coverage, from their 
employers, so that the law is not neutral and generally applicable. I have not 
looked at any of these provisions. But the employers who are permitted to 
provide less than full coverage seems the most powerful example here. These 
exceptions go not only to general applicability, but also to the compelling 
interest argument under both RFRA and the Free Exercise Clause

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

___
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RE: The contraception mandate under Empoyment Division v Smith

[James Edward Maule]

I have a question about laws of general applicability. More than a few posts 
ago, someone - I apologize for not remembering who - gave the speed limit law 
as an example of a law of general applicability. I recall the point was that 
even if a person or religious organization had a religious reason for violating 
the speed limit, the claim would fail.

Thus, I wonder about the argument being made by the Becket Fund. The speed 
limit set by the speed limit law (a) does not apply to everyone (e.g., 
emergency vehicles), (b) [can't think of an analogy], and (c) provides for a 
system of individualized exemptions in the form of permits issued to allow 
violation of the minimum speed requirement for transporting certain large 
objects (and I think there are some instances where permits can be obtained to 
exceed the stated maximum).

Thus, I wonder, are these the tests for finding a law not to be of general 
applicability?

Jim Maule

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Will Esser
Sent: Monday, February 13, 2012 1:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: The contraception mandate under Empoyment Division v Smith

Brad,

In the complaint filed by Belmont Abbey College challenging the contraception 
mandate, the Becket Fund argues that the contraception mandate is not a law of 
general applicability because among other things (a) it does not apply to all 
employers (for instance it does not apply to employers with fewer than 50 
employees); (b) it does not apply to certain "grandfathered" insurance plans; 
and (c) it provides for a system of individualized exemptions by allowing HHS 
the ability to grant waivers in response to individualized requests.  You can 
access the complaint here:

 
http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf)

Maybe the question to be asked is which "law" must be of general applicability? 
 In Smith, it strikes me that the peyote statute was a stand alone criminal 
law.  In this instance, I understood that the contraception mandate was just 
one component of the overall  federal healthcare reform act.  So it seems to me 
that in interpreting whether the law is one of general applicability, a court 
would be required to look at the entire healthcare reform act and determine 
what waivers and exemptions were included in it, rather than just narrowly 
focusing on the contraception mandate itself.

Thoughts?

Will


Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina


"We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light."
(Attributed to Plato, 428-345 B.C.)


--- On Sat, 2/11/12, Brad Pardee  wrote:

From: Brad Pardee 
Subject: The contraception mandate under Empoyment Division v Smith
To: religionlaw@lists.ucla.edu
Date: Saturday, February 11, 2012, 12:31 AM

I've been following the coverage of the mandate that religious organizations 
provide free contraception through their insurance plans, regardless of whether 
or not it forces them to violate the tenets of their faith.  Today's 
announcement of an accomodation notwithstanding, ,though, I'm wondering what 
the chances are that the courts would rule against the administration if the 
lawsuits that have been filed go to trial.



It's my understanding that, in Employment Division v Smith, the Court clearly 
said that a neutral law of general applicability isn't going to violate the 
Free Exercise Clause.  From what I've read, the regulation in question appears 
to be both neutral and of general applicability.  A strict adherence to Smith 
would seem to weigh against the religious freedom claims, which is the danger 
many have seen in Smith since the ruling first came out.



What is the sense here whether the Courts would adhere to Smith and uphold the 
mandate, or would the Courts see it as an opportunity to revisit Smith?  I 
don't remember that there was the same national controversy over Smith when it 
came out, but it seemed to me that, outside of legal and Native American 
circles, most folks didn't worry about it because they didn't see it as a 
ruling beyond peyote.  The contraceptive mandate has certainly gotten the 
attention of a much larger segment of society, though.  I wonder if the Court 
would see a case like this as an opportunity to restore what was lost in Smith.



Brad Pardee

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An

Re: The contraception mandate under Empoyment Division v Smith

[Will Esser]

Brad,
 
In the complaint filed by Belmont Abbey College challenging the contraception 
mandate, the Becket Fund argues that the contraception mandate is not a law of 
general applicability because among other things (a) it does not apply to all 
employers (for instance it does not apply to employers with fewer than 50 
employees); (b) it does not apply to certain "grandfathered" insurance plans; 
and (c) it provides for a system of individualized exemptions by allowing HHS 
the ability to grant waivers in response to individualized requests.  You can 
access the complaint here:  
 
 http://www.becketfund.org/wp-content/uploads/2011/11/HHS-Complaint-Final11.10.11.pdf)

Maybe the question to be asked is which "law" must be of general 
applicability?  In Smith, it strikes me that the peyote statute was a stand 
alone criminal law.  In this instance, I understood that the contraception 
mandate was just one component of the overall  federal healthcare reform act.  
So it seems to me that in interpreting whether the law is one of general 
applicability, a court would be required to look at the entire healthcare 
reform act and determine what waivers and exemptions were included in it, 
rather than just narrowly focusing on the contraception mandate itself.
 
Thoughts?
 
Will
 
 
Will Esser --- Ad Majorem Dei Gloriam
Charlotte, North Carolina


"We can easily forgive a child who is afraid of the dark;
the real tragedy is when men are afraid of the light."
(Attributed to Plato, 428-345 B.C.)


--- On Sat, 2/11/12, Brad Pardee  wrote:


From: Brad Pardee 
Subject: The contraception mandate under Empoyment Division v Smith
To: religionlaw@lists.ucla.edu
Date: Saturday, February 11, 2012, 12:31 AM









I've been following the coverage of the mandate that religious organizations 
provide free contraception through their insurance plans, regardless of whether 
or not it forces them to violate the tenets of their faith.  Today's 
announcement of an accomodation notwithstanding, ,though, I'm wondering what 
the chances are that the courts would rule against the administration if the 
lawsuits that have been filed go to trial.
 
It's my understanding that, in Employment Division v Smith, the Court clearly 
said that a neutral law of general applicability isn't going to violate the 
Free Exercise Clause.  From what I've read, the regulation in question appears 
to be both neutral and of general applicability.  A strict adherence to Smith 
would seem to weigh against the religious freedom claims, which is the danger 
many have seen in Smith since the ruling first came out.
 
What is the sense here whether the Courts would adhere to Smith and uphold the 
mandate, or would the Courts see it as an opportunity to revisit Smith?  I 
don't remember that there was the same national controversy over Smith when it 
came out, but it seemed to me that, outside of legal and Native American 
circles, most folks didn't worry about it because they didn't see it as a 
ruling beyond peyote.  The contraceptive mandate has certainly gotten the 
attention of a much larger segment of society, though.  I wonder if the Court 
would see a case like this as an opportunity to restore what was lost in Smith.
 
Brad Pardee
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RE: The contraception mandate under Empoyment Division v Smith

[Douglas Laycock]

The first claim in the pending complaints is RFRA, which of course
completely avoids the Smith problem.  The free exercise count alleges that
there are both statutory and administrative exceptions that affect tens of
millions of Americans who will get no coverage, or less than full coverage,
from their employers, so that the law is not neutral and generally
applicable. I have not looked at any of these provisions. But the employers
who are permitted to provide less than full coverage seems the most powerful
example here. These exceptions go not only to general applicability, but
also to the compelling interest argument under both RFRA and the Free
Exercise Clause 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
Sent: Saturday, February 11, 2012 12:32 AM
To: religionlaw@lists.ucla.edu
Subject: The contraception mandate under Empoyment Division v Smith

 

I've been following the coverage of the mandate that religious organizations
provide free contraception through their insurance plans, regardless of
whether or not it forces them to violate the tenets of their faith.  Today's
announcement of an accomodation notwithstanding, ,though, I'm wondering what
the chances are that the courts would rule against the administration if the
lawsuits that have been filed go to trial.

 

It's my understanding that, in Employment Division v Smith, the Court
clearly said that a neutral law of general applicability isn't going to
violate the Free Exercise Clause.  From what I've read, the regulation in
question appears to be both neutral and of general applicability.  A strict
adherence to Smith would seem to weigh against the religious freedom claims,
which is the danger many have seen in Smith since the ruling first came out.

 

What is the sense here whether the Courts would adhere to Smith and uphold
the mandate, or would the Courts see it as an opportunity to revisit Smith?
I don't remember that there was the same national controversy over Smith
when it came out, but it seemed to me that, outside of legal and Native
American circles, most folks didn't worry about it because they didn't see
it as a ruling beyond peyote.  The contraceptive mandate has certainly
gotten the attention of a much larger segment of society, though.  I wonder
if the Court would see a case like this as an opportunity to restore what
was lost in Smith.

 

Brad Pardee

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The contraception mandate under Empoyment Division v Smith

[Brad Pardee]

I've been following the coverage of the mandate that religious organizations
provide free contraception through their insurance plans, regardless of
whether or not it forces them to violate the tenets of their faith.  Today's
announcement of an accomodation notwithstanding, ,though, I'm wondering what
the chances are that the courts would rule against the administration if the
lawsuits that have been filed go to trial.

 

It's my understanding that, in Employment Division v Smith, the Court
clearly said that a neutral law of general applicability isn't going to
violate the Free Exercise Clause.  From what I've read, the regulation in
question appears to be both neutral and of general applicability.  A strict
adherence to Smith would seem to weigh against the religious freedom claims,
which is the danger many have seen in Smith since the ruling first came out.

 

What is the sense here whether the Courts would adhere to Smith and uphold
the mandate, or would the Courts see it as an opportunity to revisit Smith?
I don't remember that there was the same national controversy over Smith
when it came out, but it seemed to me that, outside of legal and Native
American circles, most folks didn't worry about it because they didn't see
it as a ruling beyond peyote.  The contraceptive mandate has certainly
gotten the attention of a much larger segment of society, though.  I wonder
if the Court would see a case like this as an opportunity to restore what
was lost in Smith.

 

Brad Pardee

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Anyone can subscribe to the list and read messages that are posted; people can 
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