RE: Hobby Lobby Question
Sandy, Many people think millions of innocent babies have been intentionally killed. It is nearly intolerable that a government would allow private persons to do this (putting the child outside the protection of the law), and unthinkable that a court would prevent the people from acting through the other branches of government to stop it. Once the government sets up a program of paying for mass abortion, many people will think that the government is too evil to be treated as legitimate. Resistance of various kinds would become morally permissible or even required. You asked how this could be distinguished from use of tax money for unjust wars and for propping up terrible foreign regimes: We have seen that when we try to replace terrible regimes abroad with better ones, we sometimes only make things worse. Did the Shah do bad things? Of course. Did our pressuring the Shah to allow Khomeini to return improve the situation? The question answers itself. Even in wars that many of us may think unnecessary and unjust, our forces generally do not have a policy of intentionally killing innocent noncombatants. We all know that there will be disagreements about which wars need to be fought, and how they should be fought. The vast majority of Americans are not thoroughgoing pacifists; we know that we do need armed forces and that they will sometimes need to be sent to war. But when soldiers intentionally kill innocent noncombatants - not as an unwanted but unavoidable side-effect but intentionally - we want the perpetrators to be prosecuted. When the victims are innocent young children, we want even harsher punishment of the perpetrators. Abortion is an intentional killing of the fetus/unborn child. Only rarely can the death be seen as an unwanted side effect. (Ectopic pregnancies may be an exception.) Yet if the government - our government, using resources taken from us - starts paying doctors to kill innocent children? What would you do, Sandy, if the government paid for vans to pick up unwanted children and kill them? Resistance to paying taxes would probably be the mildest reaction you would have. This may be too foreign to you for it to be understandable, but that is how millions of Americans would feel about massive levels of government funded abortions (or even less-than-massive levels). It's hard for me to believe that those who are strongly pro-life really think in their gut that an early abortion is the same as the murder of an innocent child. If they did, they would refuse to tolerate such mass murder, and we would already have a civil war; or at least we would unless the pro-life forces were convinced that violence would lead to an even worse Hobbesian war of all against all. Perhaps Christian teachings about non-violence or respect for authority help to constrain what could otherwise be violent actions taken in defense of innocent human life. There is occasional violence, but nothing like what would happen if there were vans going around picking up children and killing them, all under police protection. We would get out our hunting rifles. (Actually, I'd go out and buy one, if they were available.) Now, the later the abortion, the more like child murder it becomes (even for those who believe intellectually that all abortions are the same), and the stronger the reaction; that explains why, if I'm correct, the violence tends to be against doctors who perform late term abortions that many people see as being little different from infanticide. Even then, almost all pro-life people reject violence. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 7:45 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of the Seven Years War, but (we now know) the trigger for the American Revolution. Or is the better analogy to slavery, where compromise was ultimately impossible (for better or worse)? Sandy Sent from my iPhone On Jul 6, 2014, at 4:14 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: And then we would have massive resistance that would make our largely voluntary tax system unworkable and create civil division at extreme levels. Think, as mentioned at AALS, peasants with pitchforks. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message
Re: Hobby Lobby Question
Mark with all due respect, infanticide is illegal everywhere in the US and anyone caught and convicted is punished. Do you any evidence of mass killings of babies in this country? I have never seen any evidence of this. Infanticide is pretty rare. I know no jurisdiction that puts babies, infants, or children out of the protection of the law. Can you name such a jurisdiction or give us a statute. Paul Finkelman From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, July 7, 2014 5:12 AM Subject: RE: Hobby Lobby Question Sandy, Many people think millions of innocent babies have been intentionally killed. It is nearly intolerable that a government would allow private persons to do this (putting the child outside the protection of the law), and unthinkable that a court would prevent the people from acting through the other branches of government to stop it. Once the government sets up a program of paying for mass abortion, many people will think that the government is too evil to be treated as legitimate. Resistance of various kinds would become morally permissible or even required. You asked how this could be distinguished from use of tax money for unjust wars and for propping up terrible foreign regimes: We have seen that when we try to replace terrible regimes abroad with better ones, we sometimes only make things worse. Did the Shah do bad things? Of course. Did our pressuring the Shah to allow Khomeini to return improve the situation? The question answers itself. Even in wars that many of us may think unnecessary and unjust, our forces generally do not have a policy of intentionally killing innocent noncombatants. We all know that there will be disagreements about which wars need to be fought, and how they should be fought. The vast majority of Americans are not thoroughgoing pacifists; we know that we do need armed forces and that they will sometimes need to be sent to war. But when soldiers intentionally kill innocent noncombatants – not as an unwanted but unavoidable side-effect but intentionally – we want the perpetrators to be prosecuted. When the victims are innocent young children, we want even harsher punishment of the perpetrators. Abortion is an intentional killing of the fetus/unborn child. Only rarely can the death be seen as an unwanted side effect. (Ectopic pregnancies may be an exception.) Yet if the government – our government, using resources taken from us – starts paying doctors to kill innocent children? What would you do, Sandy, if the government paid for vans to pick up unwanted children and kill them? Resistance to paying taxes would probably be the mildest reaction you would have. This may be too foreign to you for it to be understandable, but that is how millions of Americans would feel about massive levels of government funded abortions (or even less-than-massive levels). It’s hard for me to believe that those who are strongly pro-life really think in their gut that an early abortion is the same as the murder of an innocent child. If they did, they would refuse to tolerate such mass murder, and we would already have a civil war; or at least we would unless the pro-life forces were convinced that violence would lead to an even worse Hobbesian war of all against all. Perhaps Christian teachings about non-violence or respect for authority help to constrain what could otherwise be violent actions taken in defense of innocent human life. There is occasional violence, but nothing like what would happen if there were vans going around picking up children and killing them, all under police protection. We would get out our hunting rifles. (Actually, I’d go out and buy one, if they were available.) Now, the later the abortion, the more like child murder it becomes (even for those who believe intellectually that all abortions are the same), and the stronger the reaction; that explains why, if I’m correct, the violence tends to be against doctors who perform late term abortions that many people see as being little different from infanticide. Even then, almost all pro-life people reject violence. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 7:45 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs
RE: Hobby Lobby Question
I think that the anti-war movement, despite the fact that some people did not want to pay taxes to support what they regarded as immorality, was different. The Hobby Lobby case seems to me to be a battle in the culture wars. Furthermore RFRA give people a colorable tool to use in courts. Using RFRA against paying taxes seems so natural a move, that until the Supreme Court makes clear that RFRA does not afford a religious exemption from taxes, the forces that are using RFRA against Obama care will use RFRA against taxation. For those wanting to make a point about getting respect for their religious views, use of RFRA is just to tempting not to use. And without going to Court, many of them might well simply not pay taxes on the basis of RFRA and use RFRA to defend if the IRS ever has enough resources to come after them. I think the first point was that the voluntary element of enforcing the tax system would be undermined. Jon On 2014-07-07 05:12, Scarberry, Mark wrote: Sandy, Many people think millions of innocent babies have been intentionally killed. It is nearly intolerable that a government would allow private persons to do this (putting the child outside the protection of the law), and unthinkable that a court would prevent the people from acting through the other branches of government to stop it. Once the government sets up a program of paying for mass abortion, many people will think that the government is too evil to be treated as legitimate. Resistance of various kinds would become morally permissible or even required. You asked how this could be distinguished from use of tax money for unjust wars and for propping up terrible foreign regimes: We have seen that when we try to replace terrible regimes abroad with better ones, we sometimes only make things worse. Did the Shah do bad things? Of course. Did our pressuring the Shah to allow Khomeini to return improve the situation? The question answers itself. Even in wars that many of us may think unnecessary and unjust, our forces generally do not have a policy of intentionally killing innocent noncombatants. We all know that there will be disagreements about which wars need to be fought, and how they should be fought. The vast majority of Americans are not thoroughgoing pacifists; we know that we do need armed forces and that they will sometimes need to be sent to war. But when soldiers intentionally kill innocent noncombatants - not as an unwanted but unavoidable side-effect but intentionally - we want the perpetrators to be prosecuted. When the victims are innocent young children, we want even harsher punishment of the perpetrators. Abortion is an intentional killing of the fetus/unborn child. Only rarely can the death be seen as an unwanted side effect. (Ectopic pregnancies may be an exception.) Yet if the government - our government, using resources taken from us - starts paying doctors to kill innocent children? What would you do, Sandy, if the government paid for vans to pick up unwanted children and kill them? Resistance to paying taxes would probably be the mildest reaction you would have. This may be too foreign to you for it to be understandable, but that is how millions of Americans would feel about massive levels of government funded abortions (or even less-than-massive levels). It's hard for me to believe that those who are strongly pro-life really think in their gut that an early abortion is the same as the murder of an innocent child. If they did, they would refuse to tolerate such mass murder, and we would already have a civil war; or at least we would unless the pro-life forces were convinced that violence would lead to an even worse Hobbesian war of all against all. Perhaps Christian teachings about non-violence or respect for authority help to constrain what could otherwise be violent actions taken in defense of innocent human life. There is occasional violence, but nothing like what would happen if there were vans going around picking up children and killing them, all under police protection. We would get out our hunting rifles. (Actually, I'd go out and buy one, if they were available.) Now, the later the abortion, the more like child murder it becomes (even for those who believe intellectually that all abortions are the same), and the stronger the reaction; that explains why, if I'm correct, the violence tends to be against doctors who perform late term abortions that many people see as being little different from infanticide. Even then, almost all pro-life people reject violence. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law FROM: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Levinson, Sanford V SENT: Sunday, July 06, 2014 7:45 PM TO: Law Religion issues for Law Academics SUBJECT: Re: Hobby Lobby Question Mark may well be right, but why would a clearly
Re: Hobby Lobby Question
I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edu wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.com [13] wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com [10] wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com [7] wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 [1] Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org [2] Howard University School of Law fax: 202-806-8567 [3] http://sdjlaw.org [4] For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edu [5] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [6] Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu [8] To subscribe, unsubscribe, change options, or get password, see
Re: Hobby Lobby Question
Mark may well be right, but why would a clearly constitutional single payer system elicit such disobedience (and arguments about complicity) but the funding of deeply immoral wars and complicity with a number of terrible regimes do not? This is meant as a serious question. Abortion has become like the Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of the Seven Years War, but (we now know) the trigger for the American Revolution. Or is the better analogy to slavery, where compromise was ultimately impossible (for better or worse)? Sandy Sent from my iPhone On Jul 6, 2014, at 4:14 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: And then we would have massive resistance that would make our largely voluntary tax system unworkable and create civil division at extreme levels. Think, as mentioned at AALS, peasants with pitchforks. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Levinson, Sanford V Date:07/06/2014 11:13 AM (GMT-08:00) To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question I suppose that Jon's is the 64 billion dollar question. I think the answer would depend on the degree to which the single payer system was exclusive. If one could still purchase supplemental coverage (for heart transplants, say), then I assume the US could treat abortion as special. But if single-payer really did in all private insurance, then I assume that abortion would have to be covered. Sandy Sent from my iPhone On Jul 6, 2014, at 1:32 PM, mallamud malla...@camden.rutgers.edumailto:malla...@camden.rutgers.edu wrote: Why wouldn't the Congress ban coverage of abortions under a single-payer system? Jon On 2014-07-01 22:22, Levinson, Sanford V wrote: I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com [13] wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com [10] wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer WARNING: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com [7] wrote: Brown eliminated the constitutional doctrine of separate but equal -- in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended
Re: Underinclusion Arguments Going Forward [Was Hobby Lobby Question]
Chris, I think you are exactly right on the merits of distinguishing HL from O Centro on this point (that grandfathering is a transition process, and peyote exception is permanent). The mystery to me is that no one on the Court, on either side, thinks it necessary to respond to the O Centro based argument from underinclusion, when that argument was so popular in the lower courts (including in the Tenth Circuit en banc in Hobby Lobby). They all just treat it like an embarrassing relative in the room, rather than the elephant it might have been. And that does raise a number of questions, including the force of O Centro on this point going forward. On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund l...@wayne.edu wrote: Sorry, Chip, I sent my post before I got your previous post. Forgive me for that—I think I get what you mean: O Centro says the exception for peyote is enough to necessitate an exception for hoasca; Hobby Lobby rejects the grandfathered exceptions as enough to necessitate the religious for-profit exception. I don’t have much to say; maybe you’re right there’s some inconsistency here. But Marty has written on this before, and I’ve always thought him right: The grandfather exceptions are temporary, meant to ease the government’s interests in minimizing administrative burdens, ensuring coverage, and maintaining continuity of coverage. That’s enough to defeat the underinclusion argument in Hobby Lobby. If Congress’s approval of peyote for Native American religious believers had a sunset provision, I can’t imagine the Court would have relied on that very heavily in O Centro. I’m saying this without the Hobby Lobby opinions in front of me. Best, Chris *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Friday, July 04, 2014 2:13 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Underinclusion Arguments Going Forward [Was Hobby Lobby Question] I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that said the government's interests in maximizing coverage of pregnancy prevention services is not compelling. And they did NOT get that, which is why litigation will continue for years. I'm still asking whether the different treatment of underinclusion in O Centro and HL is sound as a matter of legal reasoning, or is based on something else. And I haven't seen an answer that responds in those terms. On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund l...@wayne.edu wrote: I think Marty has it exactly right here. And I find it interesting how the Court sees RFRA largely as giving it greater leeway in deciding what counts as underinclusion. It’s not unlimited leeway, of course, for the reasons that Eugene gives. But if the issue was Free Exercise alone, I don’t think the exception for peyote would have mattered for hoasca (O Centro), or the exception for religious non-profits would count for for-profits (Hobby Lobby), or 40+ states making exceptions for beards would count for Muslims in Arkansas (the next case, Holt v. Hobbs). Those won’t count as exceptions for Free Exercise purposes, but they do count for RFRA purposes—or RLUIPA purposes, as in the last example. Continuing in this vein, it surprises me how RFRA analysis almost always proceeds the same way that Free Exercise Clause analysis proceeds: The challengers must find exceptions somewhere; what RFRA enables is a wider field of vision in deciding what counts as an “exception.” And In this sense, Hobby Lobby is a win for the government here. Hobby Lobby really wanted a decision that said that exemptions didn’t matter and that religious liberty simply trumped women’s access to contraception. That is very far from the Court’s actual reasoning. Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: I don't think the HL Court does move away from the O Centro analysis on underinclusiveness. It treats the HHS secondary accommodation just as the O Centro court treated the marijuana exception--as a case in which the government could not explain why the reasons for creating that exception would not apply with full force to the requested exemption. The line the government had drawn, in other words, was arbitrary as far as the Court was concerned. On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu icl...@law.gwu.edu wrote: Eugene's arguments here are very strong. Exceptions to federal laws are frequent, and sometimes based on weak policy reasons. But then what do we make
Re: Underinclusion Arguments Going Forward [Was Hobby Lobby Question]
I like Alan's argument too, though it doesn't fit so well with the O Centro opinion, which emphasized appreciable damage to government interests from the peyote exemption, rather than religious favoritism. (N.B. Non-Native American religions do not have the benefit of the peyote exemption, nor to my knowledge have any of those ever won a RFRA exemption, so religious favoritism still inheres in the scheme. And I seriously doubt whether the non-Native American faiths could win such a case, because the government can probably prove health harms or trafficking risks or both.) Cf. Peyote Way, Inc. v Thornburgh (5th Cir, 1991, pre-RFRA, post Smith..) On Fri, Jul 4, 2014 at 5:17 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I wonder if an implicit part of the Court's concern about underinclusion in O Centro is that there are constitutional concerns about religious equality and religious favoritism if the government grants an accommodation for one faith but denies it to another, arguably similarly situated, faith. Or to put it slightly differently, once the government recognizes that religious liberty concerns justify an accommodation from a particular law for a particular faith, the government has some burden to explain why those same religious liberty concerns do not justify an accommodation from the same law for a different faith. If I remember O Centro correctly (and its been a while since I read the Court's decision) the government was insisting that the mere fact that the tea that was used in the religious ritual was on the controlled substances list was a sufficient showing to establish a compelling interest in seizing the tea. At that level of generality, it is hard to accept that one faith deserves an exemption from the controlled substances law but another does not. I don't suggest that this is the only basis for distinguishing O Centro and Hobby Lobby, but it may be part of the story. Alan -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [ icl...@law.gwu.edu] *Sent:* Friday, July 04, 2014 11:56 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Underinclusion Arguments Going Forward [Was Hobby Lobby Question] Chris, I think you are exactly right on the merits of distinguishing HL from O Centro on this point (that grandfathering is a transition process, and peyote exception is permanent). The mystery to me is that no one on the Court, on either side, thinks it necessary to respond to the O Centro based argument from underinclusion, when that argument was so popular in the lower courts (including in the Tenth Circuit en banc in Hobby Lobby). They all just treat it like an embarrassing relative in the room, rather than the elephant it might have been. And that does raise a number of questions, including the force of O Centro on this point going forward. On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund l...@wayne.edu wrote: Sorry, Chip, I sent my post before I got your previous post. Forgive me for that—I think I get what you mean: O Centro says the exception for peyote is enough to necessitate an exception for hoasca; Hobby Lobby rejects the grandfathered exceptions as enough to necessitate the religious for-profit exception. I don’t have much to say; maybe you’re right there’s some inconsistency here. But Marty has written on this before, and I’ve always thought him right: The grandfather exceptions are temporary, meant to ease the government’s interests in minimizing administrative burdens, ensuring coverage, and maintaining continuity of coverage. That’s enough to defeat the underinclusion argument in Hobby Lobby. If Congress’s approval of peyote for Native American religious believers had a sunset provision, I can’t imagine the Court would have relied on that very heavily in O Centro. I’m saying this without the Hobby Lobby opinions in front of me. Best, Chris *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Friday, July 04, 2014 2:13 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Underinclusion Arguments Going Forward [Was Hobby Lobby Question] I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that said the government's interests in maximizing coverage of pregnancy prevention services is not compelling. And they did NOT get that, which is why litigation will continue for years. I'm still asking whether the different treatment of underinclusion in O Centro and HL is sound as a matter of legal reasoning, or is based on something else. And I haven't seen an answer that responds in those terms. On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund l...@wayne.edu wrote: I think Marty has it exactly right here. And I find it interesting how the Court sees RFRA largely as giving
Re: Hobby Lobby Question
I assume that the use of quotes around constitutional fact is meant to highlight that the phrase is used as an analogy in this situation, which is governed by a statute and not the Constitution. But partly for that reason, I think the danger of a jury's refusal to follow a proper instruction on the irrelevance of a belief's rationality to its sincerity is not likely to be very significant (since firstly, juries don't usually ignore a judge's instructions, and secondly, a court can also enter a JNOV if the jury has obviously gotten it wrong). If the determination of sincerity is left to courts as some kind of über-fact then I think we really do tread dangerous ground, since that determination will too often be made on hidden policy agendas, for administrative convenience, or other factors that we really don't want to impinge on religious liberty, to say nothing of investing the courts in determining issues of religion that the Constitution forbids them to do. On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. *Warning* *: this message is subject to monitoring by the NSA.* -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ 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. -- Vance R. Koven
Re: Hobby Lobby Question
Thankfully, this issue is now beside the point, but just to repeat, the premise is mistaken: There are not literally millions of women whose policies are exempted. Almost all women in the United States are or soon will be entitled to cost-free contraceptive coverage in their insurance plan. On Tue, Jul 1, 2014 at 8:04 PM, Rick Duncan nebraskalawp...@yahoo.com wrote: The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, *Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto*, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) -- *From:* Scarberry, Mark mark.scarbe...@pepperdine.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Monday, June 30, 2014 8:03 PM *Subject:* RE: Hobby Lobby Question With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Monday, June 30, 2014 12:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 9:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask
RE: Hobby Lobby Question
I have long thought, as Sandy does, that Naim v. Naim was a disgrace. It is hardly proof that Brown “did absolutely nothing,” though. Even Gerald Rosenberg’s flawed analysis of Brown does not go that far. Looking more closely at Naim, it seems somewhat less outrageous that the Court waited for better cases, which ultimately came in McClaughlin and Loving. Naim was a Chinese citizen who had married a white woman in North Carolina. She sued for divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s eligibility for U.S. citizenship. Even if the Virginia law was held unconstitutional, the lower court could still have granted an annulment or divorce. The husband’s lawyer did not argue that the racial classification was unreasonable, according to an article in 42 American Journal of Legal History, 119. Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably reflecting their fear that the post-Brown slogan “integration means intermarriage” would gain added credence and endanger compliance with Brown. None of this excuses the Court for ducking the issue, but perhaps it helps explain why the Court waited for a prosecution of an interracial couple before deciding the issue. For a good overview, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 7:20 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s
Re: Hobby Lobby Question
I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. *Warning* *: this message is subject to monitoring by the NSA.* -- Vance R. Koven Boston, MA USA vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
No. I do not reject the legitimacy nor the religiousity of the plaintiff’s beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor “legitimacy” of the beliefs. Here, the attenuation wanders through several steps: 1. corporate structure (this alone would not be enough attenuation in my judgment) 2. insurance coverage is outside of their control — it is mandated by the state 3. the actual payments for the abortificants (howsoever erroneously or correctly defined is irrellevant) comes from a third party — the insurers and so this attenuates the action by the owners one step more (compare Rosenberger and voucher cases treatment of directness) 4. the decision to get the abortificants is by the employee. Note that if the employer did not provide any insurance, it would still be complicit with evil by paying any wages at all to women employees some of whom may use an IUD or get a morning-after pill or other offending treatment. Yet surely no one would claim that that would allow the employer to not pay wages or to reduce wages by the cost of obtaining such devices, would they? This is the danger of this case — where does one draw the line on the complicity with evil theory? Can Quakers now stop paying that portion of taxes that goes to support war? That is at least as directly complicit as in this case. So I would use attenuation — we use this sort of idea in proximate cause and in other settings for legal responsibility and can do so here. Imperfectly? Surely. But the law never achieves perfection. Steve On Jul 1, 2014, at 2:04 AM, Arthur Spitzer artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown
RE: Hobby Lobby Question
I think Steve is right that in the there is a difference between challenging the legitimacy or religiosity of plaintiffs beliefs and holding that as a legal matter at some point we will draw the line on extending the protection provided to beliefs that are grounded in complicity with other people's conduct. Ginsburg makes this point explicitly in her dissent. Alito pretty much ignores it. Suppose plaintiff argued that according to their religious beliefs about complicity they could not contribute to an insurance plan that covered treatments provided by hospitals or clinics that also provided abortion services. The only providers covered by a plan they could conscientiously support would be those who personally and institutionally refused to provide abortion services. That is more attenuated than Hobby Lobby's claim, but it is grounded on the same foundation of complicity. The question to me is whether the correct place to take this attenuation into account is in the determination of substantial burden or whether it should be considered in evaluating the government's compelling state interest and whether there are less restrictive means available to further the state's goals. The downside of focusing on attenuation in deciding whether there is a substantial burden is that courts may be more influenced by their doubts as to the legitimacy or religiosity of belief when they are asked to evaluate the substantiality of the burden and using substantiality of the burden to control attenuation may result in some cases where the government wins even though it's interest is very low and should not be considered weighty enough to justify even an attenuated burden on religious exercise. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, July 01, 2014 9:32 AM To: Law Religion Law List Subject: Re: Hobby Lobby Question No. I do not reject the legitimacy nor the religiousity of the plaintiff's beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor legitimacy of the beliefs. Here, the attenuation wanders through several steps: 1. corporate structure (this alone would not be enough attenuation in my judgment) 2. insurance coverage is outside of their control - it is mandated by the state 3. the actual payments for the abortificants (howsoever erroneously or correctly defined is irrellevant) comes from a third party - the insurers and so this attenuates the action by the owners one step more (compare Rosenberger and voucher cases treatment of directness) 4. the decision to get the abortificants is by the employee. Note that if the employer did not provide any insurance, it would still be complicit with evil by paying any wages at all to women employees some of whom may use an IUD or get a morning-after pill or other offending treatment. Yet surely no one would claim that that would allow the employer to not pay wages or to reduce wages by the cost of obtaining such devices, would they? This is the danger of this case - where does one draw the line on the complicity with evil theory? Can Quakers now stop paying that portion of taxes that goes to support war? That is at least as directly complicit as in this case. So I would use attenuation - we use this sort of idea in proximate cause and in other settings for legal responsibility and can do so here. Imperfectly? Surely. But the law never achieves perfection. Steve On Jul 1, 2014, at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life
Re: Hobby Lobby Question
Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.commailto:vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. -- Vance R. Koven Boston, MA USA vrko...@world.std.commailto:vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby Question
. To protect non-officeholders, we always limit the rights of the office -- and they always complain that carpetbaggers are interfering with the rights of the institution. Protecting the corporation’s religious rights can only mean protecting the rights of its incumbent decisionmakers to use their power to impose their religious views on other participants. This is substantively if not technically “establishment,” not “free exercise.” If the goal were to protect the religious freedom of corporate participants other than the board of directors and those who vote for them, we’d have to restrict the corporation’s freedom of action, much as we do in civil rights law, labor law, contract law, consumer protection, environmental and safety law, human rights law, etc. DG From: Alan Brownstein [mailto:aebrownst...@ucdavis.edu] Sent: Monday, June 30, 2014 5:08 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 30, 2014 12:29 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http
Re: Hobby Lobby Question
Hobby Lobby was a RFRA case, so I’m puzzled below by the references below to the First Amendment (point 1) and a “constitutionally protected right” (point 6). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Daniel J. Greenwood daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Tuesday, July 1, 2014 at 1:40 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby Question 1. Rhetorically, it was probably overdetermined that the Court grant the rights to the corporation and not its “owners”. By claiming that it was protecting the corporation, the Court avoided the curious problem of why the FA should protect a particular, and peculiarly absolutist, view of corporate governance – “an economic theory which a large part of the country does not entertain.” 2. Non-profits clearly don’t have owners. Neither (less clearly) do for-profit corporations, at least where they have more than one shareholder: no one has the most basic right of ownership, the right to waste. Neither does Hobby Lobby, if I understand correctly: its sole shareholder is a trust and the trustees are barred from exercising independent judgment on a number of important issues. 3. Accordingly, had the Court based its new right in the rights of the “owners” it would have been forced to make a clear and decisive distinction between closely-held, shareholder-controlled corporations – the only form of corporation that has owners in anything resembling the ordinary sense of ownership (and even then, only if you take corporate law procedure to override its substance) –and all other corporations. That, of course, would make the Court’s reliance on the Dictionary Act silly. 4. Moreover, had it given the right to the “owners”, it would have to confront the problem that we no longer allow ownership of employees. Whatever the “owners” own (the Greens, apparently, own nothing at all, but are instead the beneficiaries of a trust that owns Hobby Lobby’s shares), they do not own the bodies or the medical care or the contract rights of the firm’s employees. The issue here is the relative power of different claimants to speak for the corporation under the rules of corporate governance: whether employees, managers, shareholders or the People get to decide the terms on which corporate medical insurance is written. 5. Who determines the corporate position on controversial issues ought to be an issue of corporate law, contract law and the ACA, perhaps even Federalism. It has next to nothing to do with religious freedom, except to the extent that general principles (not our law) suggest allowing different individuals to follow their conscience with a minimum of interference from other individuals or power structures. 6. The Greens have won the right to impose their religious views on the corporation and its unwilling participants despite the ACA’s rule that they must share this corporate decisionmaking role with their employees. The ACA decentralized the corporate decision about contraceptives, allowing each corporate participant to follow her or his own conscience. The Court holds, instead, that contraceptive decisions may be made instead by directors or shareholders or trust beneficiaries of the shareholder(it’s not entirely clear which role now has a constitutionally protected right to override ordinary corporate law and impose its views on the other corporate participants) and imposed on corporate employees and customers. Those people are put to the “difficult choice” of giving up the benefits of corporate form or accepting the fiat of the newly empowered corporate elite. The issue resolved here is not state vs citizen or majority religion vs minority religion but rather the internal decisionmaking structure of the firm. 7. Following an ancient tradition, the Court claims that granting rights to the organization protects the “people (including shareholders, officers, and employees) who are associated with [it]”. In US constitutional law, this argument goes back at least to Letson, the first corporation-and-the-Constitution case. Repetition and age, however, have not made the argument sound. The claim, as should be clear to anyone familiar with the social contract tradition, is false. Protecting the organization protects the incumbent officeholders against upstarts and dissidents who might want to share the decisionmaking power or disagree with the decisions officeholders seek to impose on them. Thus, minority and democratic rights in international and constitutional law begin by reducing the protection the “state” has (inherited royal prerogative
Re: Hobby Lobby Question
That is, of course, a deep problem. People can sincerely believe absolutely crazy things. Sandy Sent from my iPhone On Jul 1, 2014, at 12:29 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven vrko...@gmail.commailto:vrko...@gmail.com wrote: I have (perhaps incorrectly) assumed that when the Court says *it* should not get involved in judging the sincerity of a religious belief, it is expressing the proper division of labor between a court and the finder of fact. It should be up to the jury (or the court wearing a fact-finder hat) to decide whether the belief is sincerely held or not. A trial court can easily enough instruct a jury to disregard whether they think the religious belief is kooky; but it's perfectly acceptable based on the credibility of the witnesses and direct and circumstantial evidence for a jury to ascertain whether the claimed religious belief is real or bogus. I have often suspected that doctrine in religious liberty cases has become quite twisted over time by courts' reluctance to let juries do what they're supposed to do. On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. -- Vance R. Koven Boston, MA USA vrko...@world.std.commailto:vrko...@world.std.com ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Scarberry, Mark mark.scarbe...@pepperdine.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, June 30, 2014 8:03 PM Subject: RE: Hobby Lobby Question With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602
Re: Hobby Lobby Question
I wonder if the complicity with evil position is similar to the position many academics took a number of years ago concerning disinvestment and boycotts of companies that did business in the old South Africa? Maybe that metaphor would strike a chord? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) From: Arthur Spitzer artspit...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, July 1, 2014 1:04 AM Subject: Re: Hobby Lobby Question I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion without inquiry, then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that complicity with evil is sinful? Can a court evaluate and reject the religious belief that terminating a human life is evil? Can a court evaluate and reject the religious belief that morning-after pills terminate a human life? Can a court evaluate and reject the religious belief that providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer. Warning: this message is subject to monitoring by the NSA. On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby’s acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level. These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard
Re: Hobby Lobby Question
I do not understand why the complicity with evil rationale doesn't apply to taxpayers ( like Thoreau). The argument against is either that it would unduly burden the state to set up a c.o. system for tax protesters or that it would invite strategic misrepresentation. Are these sufficiently compelling interests to overcome undoubtedly sincere (and correct) beliefs that one's taxes are supporting oppression at home and around the world (as well as a lot of good things). As Uwe Reindhart points out, the craziest American exceptionalism is that workers are dependent on their employers for medical insurance. Hobby Lobby is another good argument for tax-financed single-payer coverage. Sandy Sent from my iPhone On Jun 30, 2014, at 11:48 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com wrote: The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.commailto:artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.commailto:stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal - in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby's acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent's claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level.These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017tel:202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567tel:202-806-8567 http://sdjlaw.org For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
RE: Hobby Lobby Question
The Court also said that there’s a compelling government interest in preventing race discrimination in employment, even though there are literally millions of people who are exempted from Title VII (since they work for employers who have fewer than 15 employees). Is such gross underinclusion relevant to the issue of compelling interest? If so, does it keep the interest from being compelling, and entitle religiously objecting employers with more than 15 employees to an exemption from Title VII? The Court has also said that there’s a compelling government interest in collecting federal income taxes, even though there are literally millions of people who pay no net federal income tax. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to paying certain kinds of taxes are entitled to an exemption from federal text law? The Court has also rejected a claim of religious exemption from the draft (for people who oppose only unjust wars, and therefore aren’t entitled to a statutory exemption), and has been understood as saying that there’s a compelling government interest in raising armies, even though there are literally tens of millions of people who aren’t eligible for the draft. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to unjust wars really are entitled to a draft exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, July 01, 2014 5:04 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRNhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby Question
Eugene read my mind and wrote exactly what I was going to write. Maybe gross underinclusion isn't entirely irrelevant, but standing alone it has little bearing on whether the state's interest is compelling or not for religious liberty exemption purposes. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Tuesday, July 01, 2014 8:09 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question The Court also said that there’s a compelling government interest in preventing race discrimination in employment, even though there are literally millions of people who are exempted from Title VII (since they work for employers who have fewer than 15 employees). Is such gross underinclusion relevant to the issue of compelling interest? If so, does it keep the interest from being compelling, and entitle religiously objecting employers with more than 15 employees to an exemption from Title VII? The Court has also said that there’s a compelling government interest in collecting federal income taxes, even though there are literally millions of people who pay no net federal income tax. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to paying certain kinds of taxes are entitled to an exemption from federal text law? The Court has also rejected a claim of religious exemption from the draft (for people who oppose only unjust wars, and therefore aren’t entitled to a statutory exemption), and has been understood as saying that there’s a compelling government interest in raising armies, even though there are literally tens of millions of people who aren’t eligible for the draft. Is such gross underinclusion relevant to the issue of compelling interest, to the point that people who object to unjust wars really are entitled to a draft exemption? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Tuesday, July 01, 2014 5:04 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRNhttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504 And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Hobby Lobby Question
As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby Question
Will do. I think overblown rhetoric from both sides was to be expected. It was not my case; I just filed an amicus brief. 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 Richard Friedman Sent: Monday, June 30, 2014 4:36 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question Hi, Doug. Congrats on the result! I haven't focused enough on it to have any clear sense of the merits, but the outcome does seem sensible to me, and it sure seems that some of the rhetoric I'm seeing on the other side -- much of it in support of fund-raising appeals -- is way overblown. I hope all else is well. Please pass on my warm regards to Terry. Best, Rich On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 tel: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 Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 tel:%28678%29%20641-7452 hle...@uga.edu mailto:hle...@uga.edu hillelle...@gmail.com mailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu mailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
I know. But it's not as if you were uninvolved, either in the legislation or in the case. Congratulations are certainly in order! Rich On Mon, Jun 30, 2014 at 4:41 PM, Douglas Laycock dlayc...@virginia.edu wrote: Will do. I think overblown rhetoric from both sides was to be expected. It was not my case; I just filed an amicus brief. 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 *Richard Friedman *Sent:* Monday, June 30, 2014 4:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby Question Hi, Doug. Congrats on the result! I haven't focused enough on it to have any clear sense of the merits, but the outcome does seem sensible to me, and it sure seems that some of the rhetoric I'm seeing on the other side -- much of it in support of fund-raising appeals -- is way overblown. I hope all else is well. Please pass on my warm regards to Terry. Best, Rich On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock dlayc...@virginia.edu wrote: The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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 *Hillel Y. Levin *Sent:* Monday, June 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
As have I: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvii-upshot-of.html On Mon, Jun 30, 2014 at 4:26 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: I have just posted some (probably controversial) preliminary thoughts on Hobby Lobby on Religion Clause-- http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html Howard Friedman -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [ tcb...@stthomas.edu] *Sent:* Monday, June 30, 2014 4:12 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Hobby Lobby Question The majority opinion gives ammunition to the plaintiffs in the nonprofit cases by reemphasizing that when the plaintiffs determine that a certain complicity violates their beliefs, the courts shouldn't find that too attenuated to be a burden. On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the insurer-pays) accommodation generally as the solution, and he seems not particularly enamored of the nonprofits' argument that the government can just pay for contraception with a new funding program. (The majority discussed that argument approvingly, and Kennedy joined the majority opinion in full; so it's one of those questions about parsing the opinion of a swing justice who also joined the majority opinion.) So isn't the Court pointing toward some form of the nonprofit accommodation with a different trigger. Are there reasons why the government can't adopt as a trigger the simple notice to HHS, the solution the Court adopted in the stay order in the Little Sisters case? Or was the government just waiting to see if it would win in Hobby Lobby? - 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 SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [ dlayc...@virginia.edu] *Sent:* Monday, June 30, 2014 2:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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 *Hillel Y. Levin *Sent:* Monday, June 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.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
RE: Hobby Lobby Question
I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, June 30, 2014 12:29 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 10:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
Alan Brownstein wrote: I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? By my read (Slip op at 29) for the purposes of sincerity, the right and exercise stems from the natural person and into the fictions they own and operate, but the corporation itself has the right to further a policy of protecting natural persons. My worry with your formulation is that too much focus on the owner/operator may impact any read of their sincerity. If owner Bob operates closely held Acme Corporation with religious restrictions, but not closley held Collective Corporation, does Bob not sincerely hold his religious beliefs? As to the least restrictive alternatives, it seems like there cannot be restrictions for me but not for thee, at least when it comes to religious accommodation. On the other hand, there might be set up for saying that an existing opt-out accommodation that the government demonstrates is the lowest cost may presumably be a least restrictive means, maybe even presumptively so. At least, those are the horses I might trade to avoid perverse incentives. Other than that, it seems like the majority has given themselves very little room to move in interpreting least restrictive means in the future. -Kevin Chen On Mon, Jun 30, 2014 at 5:07 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: I think the least restrictive means analysis maximizes the possibility of a win/win solution – at least it would if we did not have a dysfunctional political system. I had a couple of questions and thoughts. First, I read Alito to say that corporations are a fiction, but we will treat them as persons in order to protect the rights of real persons – here the owners of the corporation. I think it would have been clearer and more accurate to say that the owners of closely held corporations are persons and they do not lose their rights as persons under RFRA by electing to do business through a corporate form. Is my reading correct and would the alternative reading be preferable or make a difference in later cases? Second, I read both Alito and Kennedy to say that while government taking on the cost of providing benefits may be a least restrictive alternative, the cost to government of doing so is relevant to determining whether a government as provider plan qualifies as a least restrictive alternative. Third, the Court never addresses the question of whether RFRA requires the government to grant an accommodation to religious non-profits. It doesn’t have to because the accommodation was already in place. But does the Court’s emphasis on the existing accommodation for religious non-profits as the foundation for its least restrictive means analysis create a disincentive for granting such accommodations in the future in later cases. Under the Court’s analysis, if you grant an accommodation to religious non-profits, you have to grant a similar accommodation to for-profit businesses and closely held corporations. But what if you don’t grant an accommodation to the religious non-profits? What if the government argued in such a case that thousands of women would lose benefits if the accommodation was granted and the plaintiffs argued that the government should take on this cost or assign it to some third party – like insurance companies (but there was no concession or reason to think that the assignment of coverage would be cost free.) Is it completely clear after Hobby Lobby, how this case should come out? Alan Alan Brownstein Professor of Law UC Davis School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock *Sent:* Monday, June 30, 2014 12:29 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546
RE: Hobby Lobby Question
With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: With regard to Sandy's comment that there isn't a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means - less restrictive of religious liberty - than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers' religious objections. ... It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. ... If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS's argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens' religious beliefs. Cf. ?2000cc-3(c) (RLUIPA: '[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.'). HHS's view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage for free (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn't a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edumailto:hle...@uga.edu hillelle...@gmail.commailto:hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe
Re: Hobby Lobby Question
With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Monday, June 30, 2014 12:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 9:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby
Re: Hobby Lobby Question
The court accepts without inquiry the assertion that the complicity with evil theory is the problem that leads to the substantial burden. It merely accepts the claim that the adherents cannot comply because of the complicity theory. It then bootstraps that there would be costs of non-compliance. At the core the court buys the argument that an attenuated complicity can be the basis of a substantial burden. Sent from Steve's iPhone On Jul 1, 2014, at 12:20 AM, Arthur Spitzer artspit...@gmail.com wrote: I'm puzzled by Steve Jamar's statement that yesterday's decision arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial. The majority analyzed whether the burden was substantial and found it was because the ACA would impose millions of dollars of financial penalties on the plaintiffs if they did not comply. Slip op. at 32. I don't think the Court tells us whether a $100 fine would have been a substantial burden. I'm curious what in the opinion Steve points to in support of the proposition that courts may not evaluate the substantiality of a burden, especially considering that the Court did evaluate that question, as an empirical matter, in this case. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar stevenja...@gmail.com wrote: Brown eliminated the constitutional doctrine of separate but equal — in the Brown decision just for education, but it was applied to all racial classifications. The 1964 Civil Rights Act accomplished much more, of course, but the Brown decision matters a lot. So it is with numerous decisions. Hobby Lobby’s acceptance of the complicity with evil theory in this attenuated context and its ruling that arguably requires all courts to simply accept the religious adherent’s claim that the burden is substantial, could dramatically change the landscape of RFRA interpretation federally and by example at the state level.These underlying principles could also be restricted by later decisions or expanded. It is a very troubling expansion of RFRA beyond what was intended originally. But that is hardly unique to this bit of legislation. I think it is a very bad decision, but not even in the top ten. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby Question
Sandy Levinson says, Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the 'performative utterance' of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. I must be missing something. Does Sandy think that if the Supreme Court declares state laws banning same-sex marriages unconstitutional, same-sex couples living in remote corners of Texas or Virginia will have to travel to Austin or Charlottesville to find a minister or county clerk willing to marry them? After Loving v. Virginia, were interracial couples who wished to marry required to travel to miscegenation-friendly counties to get married? Does Sandy think they should have been? It seems quite clear to me that thousands of county clerks will be required to take the steps necessary to create legal same-sex marriages, whether they like it or not. And so it should be. And the Court should not decline to make such a ruling on the ground that it's politically impossible. Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 10:20 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer *Sent:* Monday, June 30, 2014 8:51 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer *Warning: this message is subject to monitoring by the NSA.* On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive
Re: Hobby Lobby Question
Sandy's idea that Brown did nothing is simply wrong. Brown altered American culture in profound ways and set the stage for massive civil rights demonstrations, since it signaled the end to legal segregation, and was followed in two years by overturning Plessy. It led to litigation and legislation in all kinds of ways, and it forced the Senators of the former Confederacy, except for LBJ, Gore, and Kefauver, to out themselves with their manifesto. Furthermore, in much of the upper south, as well as in many Catholic school systems in the South, it led so some integration. We need only remember what the US south looked like in 1950 to understand the enormous changes Brown led to. From: Levinson, Sanford V slevin...@law.utexas.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Monday, June 30, 2014 10:20 PM Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared
Re: Simple Hobby Lobby question
Got it -- I see the distinction. To put it in the imposition terms the Court used in Lee, one could say it's the difference between an employer imposing his religious faith on his employees (e.g., by requiring them to participate in prayer meetings contrary to their own beliefs) and an employer imposing some of *the costs* of his religious faith on his employees (e.g., denying them an employee benefit because of the employer's religious opposition to the benefit). Even though Lee used the former phrase, it clearly was relying on the latter concept when it explained the burden that granting an employer exemption would impose on the employee. Nonetheless, since that's the same burden on employees at issue in Hobby Lobby, it would seem like Lee should still control. Alas, I suspect a majority of the Court is not going to agree with my view on that ... - Jim On Thu, Jun 12, 2014 at 8:37 AM, Douglas Laycock dlayc...@virginia.edu wrote: One issue at a time. Yes, Hobby Lobby’s claim goes away if we accept Marty’s argument that Hobby Lobby has a viable option to just discontinue its health insurance plan. I was addressing a different issue. Any burden on the employees is economic. They are not forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious rules, or violate the rules of their own religions. But if Hobby Lobby is forced to pay for contraception coverage, the burden is religious. Only Hobby Lobby and the Greens are at risk of being forced to live by some other religion’s view of the matter and to violate the rules of their own religion. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* James Oleske [mailto:jole...@lclark.edu jole...@lclark.edu] *Sent:* Thursday, June 12, 2014 12:02 AM *To:* Law Religion issues for Law Academics *Cc:* Daniel J. Greenwood; Douglas Laycock *Subject:* Re: Simple Hobby Lobby question Without attempting to address the various corporate law issues being debated in this thread, I did want to ask a more intuitive question about this argument: [An exemption for Hobby Lobby] is not an imposition of the Greens' religion on the employees. No employee is forced to live by Hobby Lobby's religious values; they are entirely free to buy emergency contraception with their own money. The only people at risk of being forced to live by other people's religious values in this case are the Greens. Given that Hobby Lobby is entirely free to pay the opt-out tax with its own money, doesn't this argument depend on finding that the relative cost to Hobby Lobby of paying the tax is so much higher than the relative cost to employees of purchasing the disputed contraception that only the former can be deemed to constitute force or an imposition? And, at least with respect to the most effective and costly of the contraceptive methods at issue (IUDs), is it really so obvious that such a finding would be warranted? Moreover, regardless of how we might decide the imposition on employees question in the first instance, didn't the Supreme Court already address the issue explicitly in its pre-Smith jurisprudence when it said that granting the Amish employer's request for an exemption in Lee would operate to impose the employer's religious faith on the employees? Of course, if Smith had never been decided, and if the Court today was refining its own constitutional free-exercise exemption jurisprudence instead of applying a statute designed to restore the Court's pre-Smith jurisprudence, one could certainly argue that the Court should revisit the characterization of employer exemptions in Lee. But that's not where we would seem to be given the Smith decision and RFRA. - Jim On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock dlayc...@virginia.edu wrote: Sorry, but now you have shifted to a completely different argument. The alleged imposition on employees has nothing to do with corporate law; that argument would be exactly the same if Hobby Lobby were a sole proprietorship. If Hobby Lobby wins, the employees will not receive a particular benefit from Hobby Lobby, and that benefit has some economic value to those employees who would use it. The relevance of that fact is a genuine issue. But it is not an imposition of the Greens' religion on the employees. No employee is forced to live by Hobby Lobby's religious values; they are entirely free to buy emergency contraception with their own money. The only people at risk of being forced to live by other people's religious values in this case are the Greens. On Wed, 11 Jun 2014 22:27:34 + Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Corporate law is clear. Hobby Lobby’s assets do not belong to the Greens and they are forbidden by law from acting as if they owned them. This is true in each of their corporate roles
Re: Simple Hobby Lobby question
Religion-in-employment cases should not be one-sided or even two sided — there are at least three parties with serious interests that come into play–the employer’s religious exercise; the employees’ interest in employment, in the benefits required by law, in the employee’s (singularly or collectively) free exercise or freedom from imposition of the employer’s religion; and the interest of the people/the state/the public interest in seeing that secular purposes are followed. If RFRA is applied to protect Hobby Lobby in this case, then the various interests of the employees are being ignored and the religious interests of the employer are being allowed to trump all of the employee interests and all of the public interest that led to the neutral law in the first place. I would prefer to see this case decided on no-substantial burden grounds and the “complicity” theory utterly rejected as a grounds to refuse to comply with a secularly purposed law that has such an attenuated impact on the free exercise of anyone, but I agree with those who have noted that this requirement could well pass RFRA strict scrutiny even if the threshhold is deemed to have been met. If Hobby Lobby can ignore this law, then the concept of ordered liberty is undermined in favor of atomization and religion-based unit vetoes. That is wrong policy and is certainly not compelled as a matter of existing constitutional law or RFRA itself. 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://sdjlaw.org There is no cosmic law forbidding the triumph of extremism in America. Thomas McIntyre ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Simple Hobby Lobby question
Doug’s comment about rhetorical flourishes is certainly fair and I am joining this conversation late. But let me push a few people. There is , of course, a libertarian claim that Hobby Lobby can never coerce employees, since no one is coerced to work for Hobby Lobby (and an analogous claim that the government can never coerce Hobby Lobby, since no one is obligated to employ other people). I take it that general agreement exists that neither of these claims is count (I share the consensus). Doug suggests the following baseline. We should be more inclined to give employers exemptions from generally applicable laws when that means they will refrain from bestowing a benefit on their employees than when they exemption will entitle them to inflict a harm. The issue is whether the benefit/harm distinction will hold. There is, of course, a gigantic literature on this and I suspect different members of the list will take different positions on what constitutes a benefit and what constitutes a harm. And some of us will suspect that we can probably with a little work translate most benefits into harms and most harms into benefits. One very standard definition is that a harm makes somebody worse off than they were previously but a benefit makes them better off (and for some reasons hinted at below, problems exist with this obvious definition). So now consider the case of X. X used to work for GM, which provided her with a health care plan that included contraceptive coverage. X then moves to Hobby Lobby. Is there refusal to provide her with a health care plan that includes contraceptive coverage a harm (her government mandated employment package is worse) or a benefit. I’m not sure and I am even less sure the harm/benefit distinction is that helpful here. MAG From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Thursday, June 12, 2014 12:03 PM To: 'Law Religion issues for Law Academics' Subject: RE: Simple Hobby Lobby question I was responding to Professor Greenwood’s rhetorical flourish, which others have also indulged, about how Hobby Lobby is imposing its religious views on its employees. The legal significance of that rhetoric, and of correcting it, may be marginal. It at least means that the employees do not have a countervailing RFRA claim or a Title VII religious-accommodation claim. But harm to third parties, or any sort, is relevant to the analysis at the compelling-interest stage. There is also a baseline question: Hobby Lobby is not affirmatively inflicting harm, but refusing to provide a benefit. And yes, employers can burden their employee’s religious practice, as lots of Title VII cases illustrate. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark Sent: Thursday, June 12, 2014 11:54 AM To: 'Law Religion issues for Law Academics' Subject: RE: Simple Hobby Lobby question Doug Laycock writes:.” Any burden on the employees is economic. They are not forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious rules, or violate the rules of their own religions. But if Hobby Lobby is forced to pay for contraception coverage, the burden is religious. Only Hobby Lobby and the Greens are at risk of being forced to live by some other religion’s view of the matter and to violate the rules of their own religion. “ Two questions. First, could Hobby Lobby as a conceptual matter ever impose a religious burden on their employees. After all, no one is forced to work for Hobby Lobby, so even if Hobby Lobby insisted that all employees worship a golden calf, the only burden would be economic (i.e., the benefits of working for Hobby Lobby as opposed to being unemployed or having another job). (this is not a legal question concerning whether such a burden is constitutional, but a conceptual question about whether such a burden is religious or economic). Second, assume that Hobby Lobby can as a conceptual matter impose religious burdens on their employees, do religious burdens have a different status than economic burdens. Suppose, for example, a Hobby Lobby employee makes a compelling factual case that a) their religion both requires sexual activity (a reasonable interpretation of Jewish law for married persons) and contraception where the marriage partners cannot afford any or another child and b) they cannot afford contraception unless it is offered by the employer’s health care plan. Different result? I admit this is a far-fetched hypothetical, but I suspect we can quickly develop more realistic examples if religious burdens are conceptually possible. MAG
RE: Simple Hobby Lobby question
I think this is not a correct statement of corporate law. The owners of a closely held corporation are morally responsible for the corporation's actions. After all, the shareholders (or the trustees) are the voters for the board that is the corporation's ultimate decisionmaker, and if the shareholders are able to act unanimously, they can call an election at any time, so that, functionally if not legally, the directors serve at their pleasure. So the Greens are correct to feel responsible for Hobby Lobby's actions in their beneficiary of the shareholder trust role. (If I understand the facts correctly, they are also directors of the firm. In that role, they have actual control, within the constraints of fiduciary duty, and certainly are morally responsible for their actions.) However, the main point of corporate status is that the shareholders are not legally responsible for the corporation's actions. This is almost certainly why the Greens chose to organize the firm as a corporation. If Hobby Lobby poisons its customers or employees or neighbors, or if it attempts to sell products that no one is willing to buy, the shareholders have no legal obligation at all. The corporation, to be sure, is liable for its torts and contracts. But if the default is large enough to leave the corporation insolvent, the victims are out of luck. The shareholders have no obligation to pay corporate obligations, to fund the corporation adequately, to replenish its capital or to return dividends or other payments it may have made to them in the past (assuming they were proper when made). Moreover, the shareholders, as shareholders, have no responsibility at all for the actions of directors they elected or employees the directors hired, even if the shareholder knew, or should have know, the directors were acting in violation of their fiduciary duties. The only time the shareholders are legally responsible for the corporation's actions is if they disregard corporate form -- for example, by seeking to control the corporation in their shareholder role, by extracting funds from it in violation of corporate law, or by treating corporate assets as their own. Similarly, directors ordinarily are also immune from legal responsibility for their actions, even if those actions wrong another. The victims must sue the corporation, and the corporation alone. The corporation would have a claim-over against the directors if they violated their fiduciary duty, but under the business judgment rule the directors are not liable for ordinary negligence or for mistakes of judgment. More importantly, only the directors or the shareholders have standing to bring this suit – so it is irrelevant in a closely held corporation where the directors and the shareholders have a unified interest. In short, the primary reason to organize as a close corporation is to avoid legal responsibility. Note that the Greens' decision to adopt corporate form was entirely voluntary and the directors and shareholders may reverse it at any time. If they want to be legally responsible for the actions of their firm, they need only organize as a partnership. In this case, they appear to be attempting to be a corporation when it is to their advantage – that is, they have organized it as a corporation with the shares held by a trust in order to establish that they are NOT responsible for the corporation’s torts, contracts, taxes or violations of law. But at the same time, they want to ignore the corporation when that is to their advantage, claiming that the corporation’s actions to purchase health insurance are their actions or made with their money, as if the corporation didn’t exist at all. There is something quite wrong about a plaintiff, having taken advantage of the extraordinary privilege of irresponsibility, then turning around and saying, in effect, “never mind, right now and for this purpose only, I want to be responsible – but only so long as it helps me.” If this were a corporate law case instead of a constitutional law case, that two-sidedness would be clear evidence of fraud and a basis to conclude that the corporation doesn’t really exist at all – to pierce the corporate veil and disregard corporate form. -Original Message- From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Tuesday, June 10, 2014 10:23 PM To: Law Religion issues for Law Academics; Daniel J. Greenwood Subject: Re: Simple Hobby Lobby question The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative
RE: Simple Hobby Lobby question
In the RFRA context, moral responsibility is what we’re talking about. The Green’s religious exercise is burdened because they are being required to violate the moral obligations of their faith. I agree about the effects of limited liability in tort and contract. I should have been more clear that, as the child porn example suggested, that I was thinking of criminal responsibility. An individual cannot insulate himself from criminal prosecution by setting up a corporation that he wholly controls and then causing the corporation to violate the law. There are also non-criminal regulatory examples, such as the liability of controlling shareholders under the securities laws. I am no expert in these areas and can’t cite you a string of cases, although I could cite a few. But a closely held corporation is not a get-out-of-jail-free card. And it doesn’t really matter whether the government says the controlling individuals are liable for what the corporation did, because they controlled it, or are liable for what they did individually in their roles as shareholders, directors, or officers. Either way you formulate it would be equally applicable to the Greens. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu] Sent: Wednesday, June 11, 2014 4:55 PM To: Douglas Laycock; Law Religion issues for Law Academics Subject: RE: Simple Hobby Lobby question I think this is not a correct statement of corporate law. The owners of a closely held corporation are morally responsible for the corporation's actions. After all, the shareholders (or the trustees) are the voters for the board that is the corporation's ultimate decisionmaker, and if the shareholders are able to act unanimously, they can call an election at any time, so that, functionally if not legally, the directors serve at their pleasure. So the Greens are correct to feel responsible for Hobby Lobby's actions in their beneficiary of the shareholder trust role. (If I understand the facts correctly, they are also directors of the firm. In that role, they have actual control, within the constraints of fiduciary duty, and certainly are morally responsible for their actions.) However, the main point of corporate status is that the shareholders are not legally responsible for the corporation's actions. This is almost certainly why the Greens chose to organize the firm as a corporation. If Hobby Lobby poisons its customers or employees or neighbors, or if it attempts to sell products that no one is willing to buy, the shareholders have no legal obligation at all. The corporation, to be sure, is liable for its torts and contracts. But if the default is large enough to leave the corporation insolvent, the victims are out of luck. The shareholders have no obligation to pay corporate obligations, to fund the corporation adequately, to replenish its capital or to return dividends or other payments it may have made to them in the past (assuming they were proper when made). Moreover, the shareholders, as shareholders, have no responsibility at all for the actions of directors they elected or employees the directors hired, even if the shareholder knew, or should have know, the directors were acting in violation of their fiduciary duties. The only time the shareholders are legally responsible for the corporation's actions is if they disregard corporate form -- for example, by seeking to control the corporation in their shareholder role, by extracting funds from it in violation of corporate law, or by treating corporate assets as their own. Similarly, directors ordinarily are also immune from legal responsibility for their actions, even if those actions wrong another. The victims must sue the corporation, and the corporation alone. The corporation would have a claim-over against the directors if they violated their fiduciary duty, but under the business judgment rule the directors are not liable for ordinary negligence or for mistakes of judgment. More importantly, only the directors or the shareholders have standing to bring this suit – so it is irrelevant in a closely held corporation where the directors and the shareholders have a unified interest. In short, the primary reason to organize as a close corporation is to avoid legal responsibility. Note that the Greens' decision to adopt corporate form was entirely voluntary and the directors and shareholders may reverse it at any time. If they want to be legally responsible for the actions of their firm, they need only organize as a partnership. In this case, they appear to be attempting to be a corporation when it is to their advantage – that is, they have organized it as a corporation with the shares held by a trust in order
RE: Simple Hobby Lobby question
The directors’ fiduciary duty is owed to the corporation, even if it is unenforceable (because the shareholders will refuse to enforce it). And Marty is correct that the directors do decide what the corporation’s interests are. But there are limits – but they may not decide that their personal interests are the firm’s interests or that the firm’s interests are promoted by violating the law (that second point is somewhat controversial). If the firm has no religion, it has no religious interests. So the directors are acting in violation of their duty if they cause the corporation to act in accord with their own religious views at the expense of its interests (for example: paying hard cash to lawyers in this case). The First Amendment, I’d have thought, does not protect fiduciaries who seek to use money not their own to pursue the fiduciary’s values and interests in violation of their trust. There may be Freedom of Religion interests in stealing, but they are smaller than the social interest in maintaining the ordinary rules of civilization and property. If, as Richard D says, it is in the corporation’s financial interest to follow its customer’s views – that is a purely financial interest, not a religious one. Lochner might protect the firm’s interest in profit-maximization regardless of the rules of the marketplace laid down by the legislature. The Free Exercise clause surely does not. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Tuesday, June 10, 2014 11:20 PM To: Law Religion issues for Law Academics Cc: Daniel J. Greenwood Subject: Re: Simple Hobby Lobby question Lord knows Doug and I have plenty of differences on this case, but on this one we agree, at least roughly speaking. The directors may have a duty to act in the corporations' interests . . . but they are also the ones here who decide what those interests are. There are no stockholders to whom they owe a fiduciary duty. Accordingly, if they freely chose to run the corporation in a way that violated their own religious tenets, well, then, they would have violated their religious tenets. The real problem in this respect for the Greens is that they have few if any decisions to make here -- the preventive services are required by law if the Greens choose for HL to offer an employee insurance plan. However, as I've been stressing, they do have to decide whether HL will provide a health plan at all . . . and that decision might implicate their perceived religious obligations. More to this effect toward the end of my post: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 10:23 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative for the Greens to feel morally responsible for what they do with the corporation's money. If their bookstore affiliate were selling child porn instead of Christian books, we would hardly excuse the owners who made all the decisions for the corporation on the ground that it wasn't them that did it, it was the corporation. On Wed, 11 Jun 2014 00:53:05 + Daniel J. Greenwood daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu wrote: Surely directors have a fiduciary duty as a matter of state law to set aside their personal beliefs and act in the interests of the corporation – not their own souls – according to their best professional judgment. It would be strange indeed to discover that the First Amendment nationalizes and constitutionalizes basic aspects of corporate law, barring corporate law from requiring directors to act as fiduciaries. It would be stranger still to discover that directors have a right to spend money that is not theirs -- wealth that was created by the work of the employees mixed with the capital of shareholders, lenders and past employee work – for their own purposes rather than the corporations. That’s theft. Does the First Amendment really protect theft? Directors act for the corporation. If the corporation cannot exercise religion, they have no right to cause it to spend (or not spend) money or violate otherwise applicable law in order to practice their personal religions. On the other hand, if the corporation can exercise religion, they have an obligation to cause it to do so whenever it is in its interest to do so – which, I suppose, means whenever in their professional judgment doing so would protect its soul, or if it has no soul, whenever its earthly interests will be furthered
Re: Simple Hobby Lobby question
corporate form was entirely voluntary and the directors and shareholders may reverse it at any time. If they want to be legally responsible for the actions of their firm, they need only organize as a partnership. In this case, they appear to be attempting to be a corporation when it is to their advantage – that is, they have organized it as a corporation with the shares held by a trust in order to establish that they are NOT responsible for the corporation’s torts, contracts, taxes or violations of law. But at the same time, they want to ignore the corporation when that is to their advantage, claiming that the corporation’s actions to purchase health insurance are their actions or made with their money, as if the corporation didn’t exist at all. There is something quite wrong about a plaintiff, having taken advantage of the extraordinary privilege of irresponsibility, then turning around and saying, in effect, “never mind, right now and for this purpose only, I want to be responsible – but only so long as it helps me.” If this were a corporate law case instead of a constitutional law case, that two-sidedness would be clear evidence of fraud and a basis to conclude that the corporation doesn’t really exist at all – to pierce the corporate veil and disregard corporate form. -Original Message- From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Tuesday, June 10, 2014 10:23 PM To: Law Religion issues for Law Academics; Daniel J. Greenwood Subject: Re: Simple Hobby Lobby question The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative for the Greens to feel morally responsible for what they do with the corporation's money. If their bookstore affiliate were selling child porn instead of Christian books, we would hardly excuse the owners who made all the decisions for the corporation on the ground that it wasn't them that did it, it was the corporation. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Simple Hobby Lobby question
Corporate law is clear. Hobby Lobby’s assets do not belong to the Greens and they are forbidden by law from acting as if they owned them. This is true in each of their corporate roles. So either they are claiming that their own religious exercise is burdened because they are not allowed to use property not their own in violation of law – in which case, Free Exercise is burdened by the ordinary rules of property, theft and fraud. How is their claim different from a claim that Hobby Lobby need not pay its suppliers or label its goods honestly, because they prefer to maximize profits in order to use the corporation’s funds for religious purposes? Or they are claiming that the corporation’s exercise rights are burdened, in which case they have transformed the Free Exercise clause into an endorsement of Establishment: Granting Exercise rights to an organization is the same as allowing the organization’s leaders to impose the leaders’ religious views on followers. In my view, this is the simplest way to understand what the Greens are demanding here -- they seek to establish their religious views in Hobby Lobby, coercively requiring all Hobby Lobby employees to set aside personal views in favor of the institutional view. This is not a Free Exercise claim at all. It’s just a question of corporate law – does corporate law grant the executives, directors, shareholders or trust beneficiaries the right to establish a corporate religion and impose it, through contract and agency, on employees? Corporate law is clear that neither shareholders nor trust beneficiaries have any such right. It is less clear about executives and directors. I’m no Free Exercise expert, but I don’t see how the right to impose your religion on others – whether protected by state corporate law or not, and however modified by Federal limitations on the rights of employers – could be a Free Exercise right, and or limiting it a burden on Free Exercise. From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Wednesday, June 11, 2014 5:09 PM To: Daniel J. Greenwood; 'Law Religion issues for Law Academics' Subject: RE: Simple Hobby Lobby question In the RFRA context, moral responsibility is what we’re talking about. The Green’s religious exercise is burdened because they are being required to violate the moral obligations of their faith. I agree about the effects of limited liability in tort and contract. I should have been more clear that, as the child porn example suggested, that I was thinking of criminal responsibility. An individual cannot insulate himself from criminal prosecution by setting up a corporation that he wholly controls and then causing the corporation to violate the law. There are also non-criminal regulatory examples, such as the liability of controlling shareholders under the securities laws. I am no expert in these areas and can’t cite you a string of cases, although I could cite a few. But a closely held corporation is not a get-out-of-jail-free card. And it doesn’t really matter whether the government says the controlling individuals are liable for what the corporation did, because they controlled it, or are liable for what they did individually in their roles as shareholders, directors, or officers. Either way you formulate it would be equally applicable to the Greens. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu] Sent: Wednesday, June 11, 2014 4:55 PM To: Douglas Laycock; Law Religion issues for Law Academics Subject: RE: Simple Hobby Lobby question I think this is not a correct statement of corporate law. The owners of a closely held corporation are morally responsible for the corporation's actions. After all, the shareholders (or the trustees) are the voters for the board that is the corporation's ultimate decisionmaker, and if the shareholders are able to act unanimously, they can call an election at any time, so that, functionally if not legally, the directors serve at their pleasure. So the Greens are correct to feel responsible for Hobby Lobby's actions in their beneficiary of the shareholder trust role. (If I understand the facts correctly, they are also directors of the firm. In that role, they have actual control, within the constraints of fiduciary duty, and certainly are morally responsible for their actions.) However, the main point of corporate status is that the shareholders are not legally responsible for the corporation's actions. This is almost certainly why the Greens chose to organize the firm as a corporation. If Hobby Lobby poisons its customers or employees or neighbors, or if it attempts to sell products that no one is willing to buy, the shareholders have no legal obligation at all. The corporation, to be sure, is liable for its torts
Re: Simple Hobby Lobby question
It’s a quite minor and likely unimportant point in this particular exchange, I admit (unfortunately these are my specialty), but I would like to second Mark’s remark in the final paragraph of his comment below that animadversive analogy to Lochner may perhaps be inapt in this context. I take it that the crucial criticism of Lochner has to do with its dependence on unenumerated rights—constitutional or otherwise. That ought to be enough to drive a pencil through the heart of the analogy, unless one is prepared to resuscitate it with lots and lots of argument. With best wishes, Marc From: Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Thursday, June 12, 2014 at 12:02 AM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Simple Hobby Lobby question Prof. Greenwood overstates the protection corporation law gives to officers and directors from civil liability, whether or not they are shareholders. Apart from cases in which the law makes them directly responsible for the corporation's obligations (e.g., responsible person liability for unpaid withholding taxes), officers and directors generally are, as I understand the matter, liable for their own tortious actions even if performed as agents of the corporation. That is true for shareholders who actively participate in the corporation's activities and who use the corporate form in part for the benefit of limited liability. The principle of limited liability protects shareholders and officers and directors from liability for the acts of other agents of the corporation, but not for their own. The major protection is from liability for torts committed by other agents (e.g., the truck driver who negligently runs over a pedestrian) and from liability on contracts (though often the other party will insist on a personal guaranty of performance, as with many loan agreements). For a simple discussion of this from a California point of view, see http://www.centurycitybar.com/newslettertemplate/April11/article3.htm. Of course, the issue here is moral responsibility, not legal responsibility. But it's still important to see that the use of the corporate form is not the get out of jail free card that it is being portrayed as. Prof. Greenwood's use of terms like theft and fraud is not helpful in moving our discussion forward, nor is his invocation of that boogeyman of the law -- Lochner. And the business judgment rule has nothing to do with obligations to third parties, as opposed to potential liability to the corporation itself and to its shareholders Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 11, 2014, at 1:58 PM, Daniel J. Greenwood daniel.greenw...@hofstra.edumailto:daniel.greenw...@hofstra.edu wrote: I think this is not a correct statement of corporate law. The owners of a closely held corporation are morally responsible for the corporation's actions. After all, the shareholders (or the trustees) are the voters for the board that is the corporation's ultimate decisionmaker, and if the shareholders are able to act unanimously, they can call an election at any time, so that, functionally if not legally, the directors serve at their pleasure. So the Greens are correct to feel responsible for Hobby Lobby's actions in their beneficiary of the shareholder trust role. (If I understand the facts correctly, they are also directors of the firm. In that role, they have actual control, within the constraints of fiduciary duty, and certainly are morally responsible for their actions.) However, the main point of corporate status is that the shareholders are not legally responsible for the corporation's actions. This is almost certainly why the Greens chose to organize the firm as a corporation. If Hobby Lobby poisons its customers or employees or neighbors, or if it attempts to sell products that no one is willing to buy, the shareholders have no legal obligation at all. The corporation, to be sure, is liable for its torts and contracts. But if the default is large enough to leave the corporation insolvent, the victims are out of luck. The shareholders have no obligation to pay corporate obligations, to fund the corporation adequately, to replenish its capital or to return dividends or other payments it may have made to them in the past (assuming they were proper when made). Moreover, the shareholders, as shareholders, have no responsibility at all for the actions of directors they elected or employees the directors hired, even if the shareholder knew, or should have know, the directors were acting in violation of their fiduciary duties. The only time the shareholders are legally responsible for the corporation's actions is if they disregard
Re: Simple Hobby Lobby question
Sorry, but now you have shifted to a completely different argument. The alleged imposition on employees has nothing to do with corporate law; that argument would be exactly the same if Hobby Lobby were a sole proprietorship. If Hobby Lobby wins, the employees will not receive a particular benefit from Hobby Lobby, and that benefit has some economic value to those employees who would use it. The relevance of that fact is a genuine issue. But it is not an imposition of the Greens' religion on the employees. No employee is forced to live by Hobby Lobby's religious values; they are entirely free to buy emergency contraception with their own money. The only people at risk of being forced to live by other people's religious values in this case are the Greens. On Wed, 11 Jun 2014 22:27:34 + Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Corporate law is clear. Hobby Lobby’s assets do not belong to the Greens and they are forbidden by law from acting as if they owned them. This is true in each of their corporate roles. So either they are claiming that their own religious exercise is burdened because they are not allowed to use property not their own in violation of law – in which case, Free Exercise is burdened by the ordinary rules of property, theft and fraud. How is their claim different from a claim that Hobby Lobby need not pay its suppliers or label its goods honestly, because they prefer to maximize profits in order to use the corporation’s funds for religious purposes? Or they are claiming that the corporation’s exercise rights are burdened, in which case they have transformed the Free Exercise clause into an endorsement of Establishment: Granting Exercise rights to an organization is the same as allowing the organization’s leaders to impose the leaders’ religious views on followers. In my view, this is the simplest way to understand what the Greens are demanding here -- they seek to establish their religious views in Hobby Lobby, coercively requiring all Hobby Lobby employees to set aside personal views in favor of the institutional view. This is not a Free Exercise claim at all. It’s just a question of corporate law – does corporate law grant the executives, directors, shareholders or trust beneficiaries the right to establish a corporate religion and impose it, through contract and agency, on employees? Corporate law is clear that neither shareholders nor trust beneficiaries have any such right. It is less clear about executives and directors. I’m no Free Exercise expert, but I don’t see how the right to impose your religion on others – whether protected by state corporate law or not, and however modified by Federal limitations on the rights of employers – could be a Free Exercise right, and or limiting it a burden on Free Exercise. From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Wednesday, June 11, 2014 5:09 PM To: Daniel J. Greenwood; 'Law Religion issues for Law Academics' Subject: RE: Simple Hobby Lobby question In the RFRA context, moral responsibility is what we’re talking about. The Green’s religious exercise is burdened because they are being required to violate the moral obligations of their faith. I agree about the effects of limited liability in tort and contract. I should have been more clear that, as the child porn example suggested, that I was thinking of criminal responsibility. An individual cannot insulate himself from criminal prosecution by setting up a corporation that he wholly controls and then causing the corporation to violate the law. There are also non-criminal regulatory examples, such as the liability of controlling shareholders under the securities laws. I am no expert in these areas and can’t cite you a string of cases, although I could cite a few. But a closely held corporation is not a get-out-of-jail-free card. And it doesn’t really matter whether the government says the controlling individuals are liable for what the corporation did, because they controlled it, or are liable for what they did individually in their roles as shareholders, directors, or officers. Either way you formulate it would be equally applicable to the Greens. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu] Sent: Wednesday, June 11, 2014 4:55 PM To: Douglas Laycock; Law Religion issues for Law Academics Subject: RE: Simple Hobby Lobby question I think this is not a correct statement of corporate law. The owners of a closely held corporation are morally responsible for the corporation's actions. After all, the shareholders (or the trustees) are the voters for the board that is the corporation's ultimate decisionmaker, and if the shareholders are able to act unanimously, they can call an election at any time, so
RE: Simple Hobby Lobby question
Surely directors have a fiduciary duty as a matter of state law to set aside their personal beliefs and act in the interests of the corporation – not their own souls – according to their best professional judgment. It would be strange indeed to discover that the First Amendment nationalizes and constitutionalizes basic aspects of corporate law, barring corporate law from requiring directors to act as fiduciaries. It would be stranger still to discover that directors have a right to spend money that is not theirs -- wealth that was created by the work of the employees mixed with the capital of shareholders, lenders and past employee work – for their own purposes rather than the corporations. That’s theft. Does the First Amendment really protect theft? Directors act for the corporation. If the corporation cannot exercise religion, they have no right to cause it to spend (or not spend) money or violate otherwise applicable law in order to practice their personal religions. On the other hand, if the corporation can exercise religion, they have an obligation to cause it to do so whenever it is in its interest to do so – which, I suppose, means whenever in their professional judgment doing so would protect its soul, or if it has no soul, whenever its earthly interests will be furthered by religious practice. Moreover, if the First Amendment protects the corporation’s religious rights, ordinary corporate law suggests that the directors are obliged to cause it to practice whatever religion will result in promoting those interests. This might mean, for example, choosing the religion that maximizes profit in some sense, or that promotes the corporation’s product. Directors have a great deal of freedom to determine what the corporation’s interests are. But as a matter of corporate law, they have no right to substitute their own values for its interests. Again, it seems bizarre to hold that the First Amendment protection of freedom of religion protects directors in their fiduciary role: by assuming the role of fiduciary, they have given up their freedom to act according to their personal consciences. Switching the analysis to RFRA helps slightly – at least corporate law does not become a part of First Amendment law. But it is still quite implausible that the Congress meant to nationalize a traditionally state law area without explicit consideration of the implications. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, June 09, 2014 5:52 PM To: Law Religion issues for Law Academics Subject: Re: Simple Hobby Lobby question I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in their capacities as company directors. I think the Court will vote 9-0 on the question of whether someone can sue under RFRA in these circumstances. (I think that someone ought to be the Greens and Hahns in their director capacities; but whatever the theory, I doubt any Justice will vote to throw out the cases at the threshold.) The real question at stake in the cases is whether actors in the commercial sphere (corporate or not) should ever be able to prevail on the merits when granting them a religious exemption would mean significantly burdening third parties (competitors, customers, or, as here, employees). The answer to that question has been a resounding no for virtually the entire history of FEC/RFRA jurisprudence, going back 70 years. It's that tradition that is at stake. I have a bunch of posts on these and related questions if anyone's interested: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html On the points discussed immediately above, see, e.g.: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/ http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.orgmailto:lip...@au.org wrote: The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.commailto:hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever
Re: Simple Hobby Lobby question
The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative for the Greens to feel morally responsible for what they do with the corporation's money. If their bookstore affiliate were selling child porn instead of Christian books, we would hardly excuse the owners who made all the decisions for the corporation on the ground that it wasn't them that did it, it was the corporation. On Wed, 11 Jun 2014 00:53:05 + Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Surely directors have a fiduciary duty as a matter of state law to set aside their personal beliefs and act in the interests of the corporation – not their own souls – according to their best professional judgment. It would be strange indeed to discover that the First Amendment nationalizes and constitutionalizes basic aspects of corporate law, barring corporate law from requiring directors to act as fiduciaries. It would be stranger still to discover that directors have a right to spend money that is not theirs -- wealth that was created by the work of the employees mixed with the capital of shareholders, lenders and past employee work – for their own purposes rather than the corporations. That’s theft. Does the First Amendment really protect theft? Directors act for the corporation. If the corporation cannot exercise religion, they have no right to cause it to spend (or not spend) money or violate otherwise applicable law in order to practice their personal religions. On the other hand, if the corporation can exercise religion, they have an obligation to cause it to do so whenever it is in its interest to do so – which, I suppose, means whenever in their professional judgment doing so would protect its soul, or if it has no soul, whenever its earthly interests will be furthered by religious practice. Moreover, if the First Amendment protects the corporation’s religious rights, ordinary corporate law suggests that the directors are obliged to cause it to practice whatever religion will result in promoting those interests. This might mean, for example, choosing the religion that maximizes profit in some sense, or that promotes the corporation’s product. Directors have a great deal of freedom to determine what the corporation’s interests are. But as a matter of corporate law, they have no right to substitute their own values for its interests. Again, it seems bizarre to hold that the First Amendment protection of freedom of religion protects directors in their fiduciary role: by assuming the role of fiduciary, they have given up their freedom to act according to their personal consciences. Switching the analysis to RFRA helps slightly – at least corporate law does not become a part of First Amendment law. But it is still quite implausible that the Congress meant to nationalize a traditionally state law area without explicit consideration of the implications. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, June 09, 2014 5:52 PM To: Law Religion issues for Law Academics Subject: Re: Simple Hobby Lobby question I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in their capacities as company directors. I think the Court will vote 9-0 on the question of whether someone can sue under RFRA in these circumstances. (I think that someone ought to be the Greens and Hahns in their director capacities; but whatever the theory, I doubt any Justice will vote to throw out the cases at the threshold.) The real question at stake in the cases is whether actors in the commercial sphere (corporate or not) should ever be able to prevail on the merits when granting them a religious exemption would mean significantly burdening third parties (competitors, customers, or, as here, employees). The answer to that question has been a resounding no for virtually the entire history of FEC/RFRA jurisprudence, going back 70 years. It's that tradition that is at stake. I have a bunch of posts on these and related questions if anyone's interested: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html On the points discussed immediately above, see, e.g.: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html http://www.scotusblog.com/2014/02/symposium-how
Re: Simple Hobby Lobby question
Lord knows Doug and I have plenty of differences on this case, but on this one we agree, at least roughly speaking. The directors may have a duty to act in the corporations' interests . . . but they are also the ones here who decide what those interests are. There are no stockholders to whom they owe a fiduciary duty. Accordingly, if they freely chose to run the corporation in a way that violated their own religious tenets, well, then, they would have violated their religious tenets. The real problem in this respect for the Greens is that they have few if any decisions to make here -- the preventive services are required *by law* if the Greens choose for HL to offer an employee insurance plan. However, as I've been stressing, they *do* have to decide whether HL will provide a health plan at all . . . and *that *decision might implicate their perceived religious obligations. More to this effect toward the end of my post: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 10:23 PM, Douglas Laycock dlayc...@virginia.edu wrote: The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative for the Greens to feel morally responsible for what they do with the corporation's money. If their bookstore affiliate were selling child porn instead of Christian books, we would hardly excuse the owners who made all the decisions for the corporation on the ground that it wasn't them that did it, it was the corporation. On Wed, 11 Jun 2014 00:53:05 + Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Surely directors have a fiduciary duty as a matter of state law to set aside their personal beliefs and act in the interests of the corporation – not their own souls – according to their best professional judgment. It would be strange indeed to discover that the First Amendment nationalizes and constitutionalizes basic aspects of corporate law, barring corporate law from requiring directors to act as fiduciaries. It would be stranger still to discover that directors have a right to spend money that is not theirs -- wealth that was created by the work of the employees mixed with the capital of shareholders, lenders and past employee work – for their own purposes rather than the corporations. That’s theft. Does the First Amendment really protect theft? Directors act for the corporation. If the corporation cannot exercise religion, they have no right to cause it to spend (or not spend) money or violate otherwise applicable law in order to practice their personal religions. On the other hand, if the corporation can exercise religion, they have an obligation to cause it to do so whenever it is in its interest to do so – which, I suppose, means whenever in their professional judgment doing so would protect its soul, or if it has no soul, whenever its earthly interests will be furthered by religious practice. Moreover, if the First Amendment protects the corporation’s religious rights, ordinary corporate law suggests that the directors are obliged to cause it to practice whatever religion will result in promoting those interests. This might mean, for example, choosing the religion that maximizes profit in some sense, or that promotes the corporation’s product. Directors have a great deal of freedom to determine what the corporation’s interests are. But as a matter of corporate law, they have no right to substitute their own values for its interests. Again, it seems bizarre to hold that the First Amendment protection of freedom of religion protects directors in their fiduciary role: by assuming the role of fiduciary, they have given up their freedom to act according to their personal consciences. Switching the analysis to RFRA helps slightly – at least corporate law does not become a part of First Amendment law. But it is still quite implausible that the Congress meant to nationalize a traditionally state law area without explicit consideration of the implications. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, June 09, 2014 5:52 PM To: Law Religion issues for Law Academics Subject: Re: Simple Hobby Lobby question I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in their capacities as company directors. I think the Court will vote 9-0 on the question of whether
Re: Simple Hobby Lobby question
I would add that it is likely that Hobby Lobby is acting in the interests of the corporation in this instance, including the fiduciary interest; scores of people shop at Hobby Lobby because they like what it stands for. Take that away, or make it seem as if they have abandoned it, and it can't help Hobby Lobby's marketing (see the Boy Scouts). Richard Dougherty University of Dallas On Tue, Jun 10, 2014 at 9:23 PM, Douglas Laycock dlayc...@virginia.edu wrote: The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative for the Greens to feel morally responsible for what they do with the corporation's money. If their bookstore affiliate were selling child porn instead of Christian books, we would hardly excuse the owners who made all the decisions for the corporation on the ground that it wasn't them that did it, it was the corporation. On Wed, 11 Jun 2014 00:53:05 + Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Surely directors have a fiduciary duty as a matter of state law to set aside their personal beliefs and act in the interests of the corporation – not their own souls – according to their best professional judgment. It would be strange indeed to discover that the First Amendment nationalizes and constitutionalizes basic aspects of corporate law, barring corporate law from requiring directors to act as fiduciaries. It would be stranger still to discover that directors have a right to spend money that is not theirs -- wealth that was created by the work of the employees mixed with the capital of shareholders, lenders and past employee work – for their own purposes rather than the corporations. That’s theft. Does the First Amendment really protect theft? Directors act for the corporation. If the corporation cannot exercise religion, they have no right to cause it to spend (or not spend) money or violate otherwise applicable law in order to practice their personal religions. On the other hand, if the corporation can exercise religion, they have an obligation to cause it to do so whenever it is in its interest to do so – which, I suppose, means whenever in their professional judgment doing so would protect its soul, or if it has no soul, whenever its earthly interests will be furthered by religious practice. Moreover, if the First Amendment protects the corporation’s religious rights, ordinary corporate law suggests that the directors are obliged to cause it to practice whatever religion will result in promoting those interests. This might mean, for example, choosing the religion that maximizes profit in some sense, or that promotes the corporation’s product. Directors have a great deal of freedom to determine what the corporation’s interests are. But as a matter of corporate law, they have no right to substitute their own values for its interests. Again, it seems bizarre to hold that the First Amendment protection of freedom of religion protects directors in their fiduciary role: by assuming the role of fiduciary, they have given up their freedom to act according to their personal consciences. Switching the analysis to RFRA helps slightly – at least corporate law does not become a part of First Amendment law. But it is still quite implausible that the Congress meant to nationalize a traditionally state law area without explicit consideration of the implications. ___ 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.
Simple Hobby Lobby question
Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Simple Hobby Lobby question
The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Simple Hobby Lobby question
Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote: The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Simple Hobby Lobby question
I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in *their capacities as company directors*. I think the Court will vote 9-0 on the question of whether *someone* can sue under RFRA in these circumstances. (I think that someone ought to be the Greens and Hahns in their director capacities; but whatever the theory, I doubt any Justice will vote to throw out the cases at the threshold.) The real question at stake in the cases is whether actors in the commercial sphere (corporate or not) should ever be able to prevail on the merits when granting them a religious exemption would mean significantly burdening third parties (competitors, customers, or, as here, employees). The answer to *that *question has been a resounding no for virtually the entire history of FEC/RFRA jurisprudence, going back 70 years. It's that tradition that is at stake. I have a bunch of posts on these and related questions if anyone's interested: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html On the points discussed immediately above, see, e.g.: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/ http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote: The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.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
