Re: Amazing what Hobby Lobby has wrought
The fact remains that such cases are not arising (I know of only one, thirty years ago in Minnesota) Regrettably, incidents of businesses discriminating against gay and lesbian people for religious reasons are still arising and are not limited to wedding services. *See, e.g.*, Salemi v. Gloria's Tribeca Inc., 982 N.Y.S.2d 458, 459-60 (2014) (restaurant owner discriminated against lesbian employee by repeatedly stating that homosexuality is 'a sin,' and that 'gay people' were 'going to go to hell' and generally subjecting her to an incessant barrage of offensive anti-homosexual invective; plaintiff was was retaliated against for refusing to fire another employee because of his sexual orientation; owner defended behavior as part of his right to express his religious views); http://www.businessinsider.com/hawaii-bed-breakfast-lesbian-couple-suit-2013-4 (Bed and Breakfast owner refused room to gay couple for religious reasons). The restaurant owner in the Gloria's Tribeca case is the kind of employer the Family Research Council believes should have the right not to employ gay people. FRC would not be making the argument for this right if a constituency that wanted the right did not exist. It does. Again, this is not just about opposition to same-sex marriage. It is also about strong opposition to homosexuality, which is almost as prevalent. As of May 2014, Gallup reported that 30% of the population still thought sex between people of the same sex should be illegal. The FRC's constituency comes from that group, and many in that constituency believe that business owners should be allowed to refuse to hire openly gay people and refuse to rent to openly gay people because hiring or renting to gay people serves to normalize homosexuality. The constituency that shares those beliefs is shrinking with each passing year, but it still very much exists, and FRC and its allies are fighting to legally empower it by blocking LGBT nondiscrimination laws and by passing broad religious exemption laws (regardless of whether we think such exemption laws will actually serve FRC's goals). no one has ever won a religious exemption from a discrimination law in a case not involving a minister suing a religious organization If that is the case, it seems that passing a RFRA with a civil-rights carve-out would accomplish at least 99% of the gains for religious liberty that most academic advocates of state RFRAs are seeking. The Constitution will still protect religious organizations against civil rights claims in the ministerial context, as it has with respect to all the other classes protected under state civil rights laws. Plus, many of those state laws already provide additional protections for religious organizations that can be applied equally in the LGBT context as they are in cases involving other statutorily protected classes. I understand why some of the political advocates for state RFRAs reject a carve out (they care passionately about the business owners who most academic RFRA supporters think will only rarely, if ever, be able to make a successful claim in a civil rights case), but I don't understand why those in the academy who have been championing RFRAs since the early 1990s don't view 99% as better than 0%, which is what resulted from the refusal to accept a civil-right carve-out in RLPA (though the gap was partially filled by RLUIPA). - Jim On Sat, Mar 28, 2015 at 8:03 AM, Douglas Laycock dlayc...@virginia.edu wrote: Of course those quotes are real. Part of the problem here is conservative legislators and activists pandering to the base and promising things they can't deliver. The fact remains that such cases are not arising (I know of only one, thirty years ago in Minnesota) and that no one has ever won a religious exemption from a discrimination law in a case not involving a minister suing a religious organization. On Fri, 27 Mar 2015 23:58:40 -0700 James Oleske jole...@lclark.edu wrote: no one is talking about discrimination against gay and lesbian people as such That assertion is simply incorrect. In opposing ENDA, the Family Research Council complained that, under it, [y]ou can’t decline to hire a homosexual for religious reasons. Similarly, in opposing the recent Utah legislation, the FRC objected that it leaves profit-making businesses ... vulnerable to being forced to hire homosexual and transgender persons. Last I checked, FRC was still a pretty major player in conservative circles. Among other things, it sponsors the annual Values Voter summit that routinely draws leading Republican presidential candidates (Mitt Romney, among others, attended in both 2011 and 2012). I would have expected Ryan to be familiar with FRC's position given that he has appeared on its radio program at least twice in recent years, including one appearance that was all about opposing ENDA. And it's not just FRC that frames the discussion in terms of opposition to gay rights in general,
Re: Amazing what Hobby Lobby has wrought
Interesting articles in the Washington Post on the Indiana brouhaha. http://www.washingtonpost.com/politics/gov-pence-defends-religious-freedom-bill-amid-continued-criticism/2015/03/29/c8174cbe-d63a-11e4-ba28-f2a685dc7f89_story.html Gov. Pence points out that there are many misunderstandings and much misinformation disseminated about what the state RFRA does. I think that is true and I have been having to explain to my friends what the law actually says as opposed to what some opponents say it say it says. But then he goes on to push misinformation himself — that somehow, “This isn’t about disputes between individuals,” he [Gov. Pence] said. “It’s about government overreach, and I’m proud that Indiana stepped forward, and I’m working hard to clarify this.” But there is little evidence of government overreach in restricting religious freedom, least of all in Indiana, at least for the majority religions, so it is not at all clear what religious freedom needs to be restored. And Gov. Pence’s comments illustrate how the bill was sold — that it somehow does not affect individuals, completely ignoring state laws that would ban discrimination must now be defended in court as an affirmative defense under a strict scrutiny standard. I’ve heard apologists for the state RFRAs on TV this week make the same misleading/misinformation claim that this has nothing to do with individuals interacting with each other. Viewing state RFRAs as Trojan Horses or the camel’s nose is not crazy. And the timing of this new spate of state RFRAs, post Hobby Lobby, is not an accident. Since Hobby Lobby allows discrimination by an employer against women seeking certain kinds of medical treatment because of the federal RFRA, it is not crazy for those fighting discrimination to see the state efforts to pass broad-brush RFRAs in that light. http://www.washingtonpost.com/blogs/the-fix/wp/2015/03/29/why-the-backlash-against-indiana-and-not-other-states-with-similar-laws-timing/?tid=sm_fb I wonder what the “clarification” will be? Exempting discrimination laws generally from the state RFRA? Adding sexual orientation to the list of things employers and educators and places of public accommodation cannot use as a basis for discrimination? Limiting it somehow to state action that does not regulate private individuals or persons generally? (What would that look like?) Timing is everything. Well, not quite. Wording matters too. As does the evil the bill is actually targeting. As does the evil its advocates say it is targeting. Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org Hope is not the conviction that something will turn out well, but the certainty that something makes sense regardless of how it turns out. Vaclav Havel. ___ 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: Amazing what Hobby Lobby has wrought
Maggie Gallagher asks an interesting question-- namely, which GOP nominees, if any, will defend the Indiana law? http://thepulse2016.com/maggie-gallagher/2015/03/30/will-any-gop-candidates-step-up-to-the-plate-for-religious-liberty/: For that matter, how long --and after the threat of how many boycotts -- will it be before the Indiana legislature at a minimum enacts a civil rights law carve-out? I have to imagine the entire business community in the state is in the state house as we speaking, pleading for such an amendment. It's simply amazing how fast the politics on these questions have turned in just the past five years. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
If I recall correctly, several years ago there was a suit against a church in San Francisco for firing an organist (who helps lead a congregation in worship as he or she plays sacred music), an organist who was, as I recall, a sexually active gay man. What about the small Christian bookstore like the one (Logos) that I frequented when studying at UCLA? Should there be a blanket anti-discrimination law exception to a state RFRA in such a case, so that the bookstore would have to hire atheists to recommend particular religious books to customers, or hire persons to do so who disagree with the moral principles taught in the books that the owner thinks most faithful to the faith? What if the owner of the bookstore has the temerity to operate it as a for-profit entity so that at some point the owner may actually be able to keep the fruits of his or her years of labor by selling the business? (Proceeds of sale of a nonprofit operation may not, as I understand it, enure to the be! nefit of a private person.) Most recently there was the alarming position taken by the administration in Hosanna Tabor against the ministerial exception (and not just against its application in that case). Cf. O Centro. It is not surprising that proponents of state law RFRAs have little trust in the proclamations of government officials and others in support of religious freedom. And, as Doug reminds us, there was CLS v. Martinez, in which many of us thought a public law school was advancing pretextual reasons for a policy that discriminated against CLS. CLS made a tactical error in stipulating , contrary to the facts, that the all-comers policy was uniformly applied. I doubt that another group now will have a chance of prevailing even if it doesn't so stipulate. This is not the same as the pervasive racial discrimination with respect to real public accommodations that effectively excluded African-Americans and sometimes Jews from much of public life and made it difficult for them even to travel. When I see gays and lesbians excluded from restaurants and hotels and theaters (on more than extremely rare, and perhaps nonexistent occasions), then I'll consider thinking that antigay bias justifies a blanket carve-out from RFRAs for civil rights laws. This is, I think, all about dignitary harm that results from religious persons holding certain views on which they might act on rare occasions in order not to be in violation of religious conscience. It is primarily, I think, about delegitimizing religious views, not about preventing acts of discrimination. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Mar 28, 2015, at 8:21 AM, Douglas Laycock dlayc...@virginia.edu wrote: The demand for a total carve out of all civil rights claims goes back to the debates on the (never enacted) Religious Liberty Protection Act in the late 90s. What was said at length then is still true today, Antidiscrimination laws generally serve compelling government interests, and to the extent that there are any cases, the side that calls itself the civil rights side will win nearly all of them. (Religious liberty is also a civil right.) But a total carve out doesn't work, because there are a few cases, in religiously sensitive contexts, where religious believers or organizations should get an exemption. There are claims against religious organizations for religious discrimination (most notoriously, in CLS v. Martinez). There are cases about weddings and marriage counseling. There are a fair number of states (not including Indiana, I think, but I haven't checked recently) where the employment discrimination laws prohibit discrimination on the basis of any lawful off-the-job activity. Think the church secretary moonlighting in an abortion clinic or a strip club or any other legal activity that the church views as immoral. If there were any good will on the two sides, it ought to be possible to negotiate a less-than-global discrimination carve out that would allow for such cases. But those negotiations never came close to agreement in the late 90s, and things are much more polarized now. Both sides are intransigent, and with respect to marriage equality, both sides want to totally crush the other, leaving no vestige of any liberty on the other side. The conservatives want no right to marry, and most red states have not added sexual orientation to their discrimination laws. RFRA opponents are now objecting even to exemptions for religious non-profits. They have generally conceded that clergy do not have to perform the wedding ceremony; I don't know if that is real or tactical. The recent deal in Utah would be very encouraging, except that it was immediately denounced by all the gay rights groups, and many Republican legislators hated it and thought they had given away the store. So a total carve out doesn't work, and the
RE: Amazing what Hobby Lobby has wrought
I'm afraid that what the state RFRA legislation is doing is encouraging, on the part of its supporters, an extravagant view of religious liberty (just read some of the material in the Austin, TX newspapers) that will then breed anger and frustration when liberal and secular judges interpret the legislation in the sensible manner that Doug would advocate (and that I assumed would be the case when I supported RFRA back in 1993). But I now believe, as a practical matter, that legalization of such issuess serves primarily to increase general acrimony. Either they are what Madison called parchment barriers, of little value in predicting actual legal outcomes (as Doug suggests) or licenses to engage in egregious discrimination (as several people on this list suggest). We turn to law when the community can't work things out in sensible conventional compromises. Sometimes that works, and sometimes it doesn't. Tocqueville might have said (incorrectly, as an empirical matter, at least in 1835), that in America political issues become matters for the judiciary to adjudicate, but it is an open question whether those adjudications will in fact be accepted or simply serve as grist for additional political hostility and cleavages. Hobby Lobby isn't going to lead to civil war, but I suspect that it is like Dred Scott (which also, incidentally, did not cause the War) inasmuch as almost new readers shifted from their priors because of anything contained in either the majority or dissenting opinions and, indeed, used those opinions as evidence that the other side just doesn't get what's at stake. sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, March 28, 2015 1:11 PM To: Law Religion Law List Subject: Re: Amazing what Hobby Lobby has wrought I know there are those who think the Indiana RFRA only protects religious adherents through an exemption or exception-based regime. But that is not how everyone will understand it. Some will think of it as a license to discriminate: http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/ We can't know how many people use subterfuge like this or who (erroneously) think liberty is license to do whatever they want despite the common good as decided through majoritarian actions. This person should say out loud who he is, what his restaurant is, where it is, and tell people the reason he is discriminating against them and not use subterfuge. To do less is to lose all moral standing on the basis of some claim of liberty. Steve - Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org If you want to bake an apple pie from scratch, you must first invent the universe. Carl Sagan ___ 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: Amazing what Hobby Lobby has wrought
Please substitute the words no readers for new readers in the missive below. My apologies for the error. Sandy Sent from my iPhone On Mar 28, 2015, at 4:43 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I'm afraid that what the state RFRA legislation is doing is encouraging, on the part of its supporters, an extravagant view of religious liberty (just read some of the material in the Austin, TX newspapers) that will then breed anger and frustration when liberal and secular judges interpret the legislation in the sensible manner that Doug would advocate (and that I assumed would be the case when I supported RFRA back in 1993). But I now believe, as a practical matter, that legalization of such issuess serves primarily to increase general acrimony. Either they are what Madison called parchment barriers, of little value in predicting actual legal outcomes (as Doug suggests) or licenses to engage in egregious discrimination (as several people on this list suggest). We turn to law when the community can't work things out in sensible conventional compromises. Sometimes that works, and sometimes it doesn't. Tocqueville might have said (incorrectly, as an empirical matter, at least in 1835), that in America political issues become matters for the judiciary to adjudicate, but it is an open question whether those adjudications will in fact be accepted or simply serve as grist for additional political hostility and cleavages. Hobby Lobby isn't going to lead to civil war, but I suspect that it is like Dred Scott (which also, incidentally, did not cause the War) inasmuch as almost new readers shifted from their priors because of anything contained in either the majority or dissenting opinions and, indeed, used those opinions as evidence that the other side just doesn't get what's at stake. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, March 28, 2015 1:11 PM To: Law Religion Law List Subject: Re: Amazing what Hobby Lobby has wrought I know there are those who think the Indiana RFRA only protects religious adherents through an exemption or exception-based regime. But that is not how everyone will understand it. Some will think of it as a license to discriminate: http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/ We can't know how many people use subterfuge like this or who (erroneously) think liberty is license to do whatever they want despite the common good as decided through majoritarian actions. This person should say out loud who he is, what his restaurant is, where it is, and tell people the reason he is discriminating against them and not use subterfuge. To do less is to lose all moral standing on the basis of some claim of liberty. Steve - Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org If you want to bake an apple pie from scratch, you must first invent the universe. Carl Sagan ___ 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: Amazing what Hobby Lobby has wrought
I know there are those who think the Indiana RFRA only protects religious adherents through an exemption or exception-based regime. But that is not how everyone will understand it. Some will think of it as a license to discriminate: http://thinkprogress.org/lgbt/2015/03/28/3640221/indiana-business-owner-admits-discriminating-lgbt-people/ We can’t know how many people use subterfuge like this or who (erroneously) think liberty is license to do whatever they want despite the common good as decided through majoritarian actions. This person should say out loud who he is, what his restaurant is, where it is, and tell people the reason he is discriminating against them and not use subterfuge. To do less is to lose all moral standing on the basis of some claim of liberty. Steve — Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org If you want to bake an apple pie from scratch, you must first invent the universe.” Carl Sagan ___ 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: Amazing what Hobby Lobby has wrought
Of course those quotes are real. Part of the problem here is conservative legislators and activists pandering to the base and promising things they can't deliver. The fact remains that such cases are not arising (I know of only one, thirty years ago in Minnesota) and that no one has ever won a religious exemption from a discrimination law in a case not involving a minister suing a religious organization. On Fri, 27 Mar 2015 23:58:40 -0700 James Oleske jole...@lclark.edu wrote: no one is talking about discrimination against gay and lesbian people as such That assertion is simply incorrect. In opposing ENDA, the Family Research Council complained that, under it, [y]ou can’t decline to hire a homosexual for religious reasons. Similarly, in opposing the recent Utah legislation, the FRC objected that it leaves profit-making businesses ... vulnerable to being forced to hire homosexual and transgender persons. Last I checked, FRC was still a pretty major player in conservative circles. Among other things, it sponsors the annual Values Voter summit that routinely draws leading Republican presidential candidates (Mitt Romney, among others, attended in both 2011 and 2012). I would have expected Ryan to be familiar with FRC's position given that he has appeared on its radio program at least twice in recent years, including one appearance that was all about opposing ENDA. And it's not just FRC that frames the discussion in terms of opposition to gay rights in general, not just same-sex marriage. The sponsor of a recent RFRA bill in Oklahoma proudly states on the front page of his website that homosexuals do not have the right to be served in every store. And as I mentioned in my earlier message, the sponsor of the failed Arizona RFRA amendment indicated that hotel owners might be allowed to refuse to rent rooms to same-sex couples. This is not just about marriage. Rather, for many opponents of same-sex marriage, that opposition is part of a larger fight against what FRC President Tony Perkins has decried as the normalization of homosexuality. - Jim On Fri, Mar 27, 2015 at 12:22 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: What you call discriminate I call freedom to operate in public square in accordance with well-founded beliefs about marriage. As Doug pointed out, no one is talking about discrimination against gay and lesbian people as such. No religion teaches that, and no case is about a blanket policy of refusing to serve gays and lesbians. The religious liberty concerns are about helping to celebrating a same-sex wedding. The candor that is truly remarkable is that you think it an appropriate use of government coercion to force a 70 year old florist to do this. Here I thought you embraced liberty for all. On Fri, Mar 27, 2015 at 2:10 PM, Greg Lipper lip...@au.org wrote: Ryan’s candor is refreshing: he very much wants businesses to be able to discriminate against same-sex couples, and he thinks that state RFRAs are important to that goal. That’s precisely why sports leagues, pharmaceutical companies, technology companies, and even certain houses of worship are reacting so strongly to the Indiana RFRA. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Amazing what Hobby Lobby has wrought
, florists and photographers should not be punished for *refusing to participate* in a *homosexual marriage!* - A *Christian business* should *not* be punished for *refusing to allow* a man to use the women’s restroom! Again, we should not blame the LGBT community for taking the bill's supporters at their word, regardless of the fact that law professors are uncertain that the bill will accomplish what its supporters are seeking. - Jim On Fri, Mar 27, 2015 at 11:24 AM, Doug Laycock dlayc...@virginia.edu wrote: Right. The widespread exaggeration of what *Hobby Lobby* did may be adding fuel to the fire. But this propaganda began before *Hobby Lobby*, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. 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 *Ryan T. Anderson *Sent:* Friday, March 27, 2015 2:16 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley J.D., Brigham Young University ___ 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: Amazing what Hobby Lobby has wrought
what its supporters are seeking. - Jim On Fri, Mar 27, 2015 at 11:24 AM, Doug Laycock dlayc...@virginia.edu wrote: Right. The widespread exaggeration of what *Hobby Lobby* did may be adding fuel to the fire. But this propaganda began before *Hobby Lobby*, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. 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 *Ryan T. Anderson *Sent:* Friday, March 27, 2015 2:16 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Amazing what Hobby Lobby has wrought
. Don't take my word for it. Here are the two lead talking points from Advance America, one of the leading advocacy organizations that helped secure passage of the Indiana RFRA: - *Christian* bakers, florists and photographers should not be punished for *refusing to participate* in a *homosexual marriage!* - A *Christian business* should *not* be punished for *refusing to allow* a man to use the women’s restroom! Again, we should not blame the LGBT community for taking the bill's supporters at their word, regardless of the fact that law professors are uncertain that the bill will accomplish what its supporters are seeking. - Jim On Fri, Mar 27, 2015 at 11:24 AM, Doug Laycock dlayc...@virginia.edu wrote: Right. The widespread exaggeration of what *Hobby Lobby* did may be adding fuel to the fire. But this propaganda began before *Hobby Lobby*, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. 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 *Ryan T. Anderson *Sent:* Friday, March 27, 2015 2:16 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley J.D., Brigham Young University Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Amazing what Hobby Lobby has wrought
simple, and it is the one Alan suggested in his earlier post: exclude civil rights claims from the coverage of state RFRAs. Alas, this likely won't happen, because the driving political force behind the current push for state RFRAs is all about securing exemptions from civil rights laws in the context of LGBT rights. Don't take my word for it. Here are the two lead talking points from Advance America, one of the leading advocacy organizations that helped secure passage of the Indiana RFRA: - *Christian* bakers, florists and photographers should not be punished for *refusing to participate* in a *homosexual marriage!* - A *Christian business* should *not* be punished for *refusing to allow* a man to use the women’s restroom! Again, we should not blame the LGBT community for taking the bill's supporters at their word, regardless of the fact that law professors are uncertain that the bill will accomplish what its supporters are seeking. - Jim On Fri, Mar 27, 2015 at 11:24 AM, Doug Laycock dlayc...@virginia.edu wrote: Right. The widespread exaggeration of what *Hobby Lobby* did may be adding fuel to the fire. But this propaganda began before *Hobby Lobby*, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. 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 *Ryan T. Anderson *Sent:* Friday, March 27, 2015 2:16 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley J.D., Brigham Young University Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives
Re: Amazing what Hobby Lobby has wrought
no one is talking about discrimination against gay and lesbian people as such That assertion is simply incorrect. In opposing ENDA, the Family Research Council complained that, under it, [y]ou can’t decline to hire a homosexual for religious reasons. Similarly, in opposing the recent Utah legislation, the FRC objected that it leaves profit-making businesses ... vulnerable to being forced to hire homosexual and transgender persons. Last I checked, FRC was still a pretty major player in conservative circles. Among other things, it sponsors the annual Values Voter summit that routinely draws leading Republican presidential candidates (Mitt Romney, among others, attended in both 2011 and 2012). I would have expected Ryan to be familiar with FRC's position given that he has appeared on its radio program at least twice in recent years, including one appearance that was all about opposing ENDA. And it's not just FRC that frames the discussion in terms of opposition to gay rights in general, not just same-sex marriage. The sponsor of a recent RFRA bill in Oklahoma proudly states on the front page of his website that homosexuals do not have the right to be served in every store. And as I mentioned in my earlier message, the sponsor of the failed Arizona RFRA amendment indicated that hotel owners might be allowed to refuse to rent rooms to same-sex couples. This is not just about marriage. Rather, for many opponents of same-sex marriage, that opposition is part of a larger fight against what FRC President Tony Perkins has decried as the normalization of homosexuality. - Jim On Fri, Mar 27, 2015 at 12:22 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: What you call discriminate I call freedom to operate in public square in accordance with well-founded beliefs about marriage. As Doug pointed out, no one is talking about discrimination against gay and lesbian people as such. No religion teaches that, and no case is about a blanket policy of refusing to serve gays and lesbians. The religious liberty concerns are about helping to celebrating a same-sex wedding. The candor that is truly remarkable is that you think it an appropriate use of government coercion to force a 70 year old florist to do this. Here I thought you embraced liberty for all. On Fri, Mar 27, 2015 at 2:10 PM, Greg Lipper lip...@au.org wrote: Ryan’s candor is refreshing: he very much wants businesses to be able to discriminate against same-sex couples, and he thinks that state RFRAs are important to that goal. That’s precisely why sports leagues, pharmaceutical companies, technology companies, and even certain houses of worship are reacting so strongly to the Indiana RFRA. ___ 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: Amazing what Hobby Lobby has wrought
Ryan’s candor is refreshing: he very much wants businesses to be able to discriminate against same-sex couples, and he thinks that state RFRAs are important to that goal. That’s precisely why sports leagues, pharmaceutical companies, technology companies, and even certain houses of worship are reacting so strongly to the Indiana RFRA. On Mar 27, 2015, at 2:41 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The Green family not paying for an employee's abortifacients, and a 70-year old grandmother not making floral arrangements for a same-sex wedding is becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. Good to know. The reactions to AZ and IN RFRAs strike me much more about the political left wanting to impose its values on Americans than anything to do with religious liberty itself. Strikes me much more about those who favor government coercion to impose comprehensive liberalism no longer mouthing the platitudes of Rawlsian political liberalism. So, yes, you're right, there has been a major shift. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to
RE: Amazing what Hobby Lobby has wrought
Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (all anti-discrimination laws) because those laws raise fundamentally different questions than the exemption sought in Hobby Lobby, there might be less opposition to state RFRA laws. But the Court failed to do that. 2. When people perceive the political momentum behind a state RFRA law to be fueled by concerns that religious employers or operators of public accommodations will have to hire or serve gay and lesbian job applicants or clients, they will interpret the law as furthering that purpose even if, in fact, it is unlikely to be interpreted by a court to permit such discrimination. Certainly, liberal opponents of such laws may overstate their likely impact. But conservative commentators and advocates who describe state recognition of same-sex marriage and anti-discrimination laws protecting gays and lesbians against discrimination as the greatest threat to religious liberty in American history certainly feed the perception that current RFRA laws are intended to protect discrimination in employment and public accommodations. 3. Given today’s climate, I think if people are serious about enacting a state RFRA law without raising the specter of protecting discrimination, they should exclude civil rights laws for the RFRA laws coverage. If narrow exemptions from civil rights laws are to be considered, they would have to be resolved through specific legislation. Recently, California was able to enact a law that significantly strengthened the duty imposed on employers to accommodate the needs of religious employees by essentially excluding a duty to accommodate a religious obligation to discriminate from its coverage. It is important to remember that there are circumstances in which religious exemptions are justified that have nothing to do with discrimination. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, March 27, 2015 11:35 AM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message
Re: Amazing what Hobby Lobby has wrought
I agree with Ryan and Doug that RFRA is sound public policy and many of the outrageous claims about RFRA should be condemned. For instance, the claim that EMTs would be able to refuse service to gays and lesbians is just ludicrous. Having said that, I think further enactment of RFRAs is impractical. If by enacting these bills, we are going to increase the perception that religions want to harm gay and lesbians as individuals, that hurts the religions who teach both that we love our neighbor and uphold marriage as between a man and a woman (as most religions today teach). A wiser course is for both sides to come together and build trust. Otherwise, the polarization over these issues will deepen, and future generations will view support of religious rights as hate speech. This was done in Utah, and can be done elsewhere. If one cannot express a view without being demonized by the other side, that chills freedom of speech. A house divided against itself cannot stand and we should act with malice toward none and charity towards all. Accusations that RFRA is based in animus are wrong. On Fri, Mar 27, 2015 at 1:12 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (all anti-discrimination laws) because those laws raise fundamentally different questions than the exemption sought in Hobby Lobby, there might be less opposition to state RFRA laws. But the Court failed to do that. 2. When people perceive the political momentum behind a state RFRA law to be fueled by concerns that religious employers or operators of public accommodations will have to hire or serve gay and lesbian job applicants or clients, they will interpret the law as furthering that purpose even if, in fact, it is unlikely to be interpreted by a court to permit such discrimination. Certainly, liberal opponents of such laws may overstate their likely impact. But conservative commentators and advocates who describe state recognition of same-sex marriage and anti-discrimination laws protecting gays and lesbians against discrimination as the greatest threat to religious liberty in American history certainly feed the perception that current RFRA laws are intended to protect discrimination in employment and public accommodations. 3. Given today’s climate, I think if people are serious about enacting a state RFRA law without raising the specter of protecting discrimination, they should exclude civil rights laws for the RFRA laws coverage. If narrow exemptions from civil rights laws are to be considered, they would have to be resolved through specific legislation. Recently, California was able to enact a law that significantly strengthened the duty imposed on employers to accommodate the needs of religious employees by essentially excluding a duty to accommodate a religious obligation to discriminate from its coverage. It is important to remember that there are circumstances in which religious exemptions are justified that have nothing to do with discrimination. Alan *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, March 27, 2015 11:35 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a * Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been
Re: Amazing what Hobby Lobby has wrought
To be clear: A wiser course is for both sides to come together and build trust. This was done in Utah, and can be done elsewhere. Otherwise, the polarization over these issues will deepen, and future generations will view support of religious rights as hate speech. If one cannot express a view without being demonized by the other side, that chills freedom of speech. On Fri, Mar 27, 2015 at 1:28 PM, Michael Worley mwor...@byulaw.net wrote: I agree with Ryan and Doug that RFRA is sound public policy and many of the outrageous claims about RFRA should be condemned. For instance, the claim that EMTs would be able to refuse service to gays and lesbians is just ludicrous. Having said that, I think further enactment of RFRAs is impractical. If by enacting these bills, we are going to increase the perception that religions want to harm gay and lesbians as individuals, that hurts the religions who teach both that we love our neighbor and uphold marriage as between a man and a woman (as most religions today teach). A wiser course is for both sides to come together and build trust. Otherwise, the polarization over these issues will deepen, and future generations will view support of religious rights as hate speech. This was done in Utah, and can be done elsewhere. If one cannot express a view without being demonized by the other side, that chills freedom of speech. A house divided against itself cannot stand and we should act with malice toward none and charity towards all. Accusations that RFRA is based in animus are wrong. On Fri, Mar 27, 2015 at 1:12 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (all anti-discrimination laws) because those laws raise fundamentally different questions than the exemption sought in Hobby Lobby, there might be less opposition to state RFRA laws. But the Court failed to do that. 2. When people perceive the political momentum behind a state RFRA law to be fueled by concerns that religious employers or operators of public accommodations will have to hire or serve gay and lesbian job applicants or clients, they will interpret the law as furthering that purpose even if, in fact, it is unlikely to be interpreted by a court to permit such discrimination. Certainly, liberal opponents of such laws may overstate their likely impact. But conservative commentators and advocates who describe state recognition of same-sex marriage and anti-discrimination laws protecting gays and lesbians against discrimination as the greatest threat to religious liberty in American history certainly feed the perception that current RFRA laws are intended to protect discrimination in employment and public accommodations. 3. Given today’s climate, I think if people are serious about enacting a state RFRA law without raising the specter of protecting discrimination, they should exclude civil rights laws for the RFRA laws coverage. If narrow exemptions from civil rights laws are to be considered, they would have to be resolved through specific legislation. Recently, California was able to enact a law that significantly strengthened the duty imposed on employers to accommodate the needs of religious employees by essentially excluding a duty to accommodate a religious obligation to discriminate from its coverage. It is important to remember that there are circumstances in which religious exemptions are justified that have nothing to do with discrimination. Alan *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, March 27, 2015 11:35 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a * Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T
Re: Amazing what Hobby Lobby has wrought
I've looked over the new Indiana law, and what jumped out at me was not that this looked like a law designed to allow people to decline to render services to others on the grounds of sexual orientation; it looks more like the original RFRA and a law designed to overcome the results of cases like *Smith*. But I understand that context is everything. Can somebody tell me whether the nature of the debate in Indiana indicated that the law was meant to accomplish the former objective? And if so, how far did the intent reach? Just to ministers being asked to participate in a marriage? To cake makers or florists asked to facilitate the celebration of a marriage? To dry cleaners who might not want to serve a gay person (but are there any people who claim a right not to do so on religious grounds)? Rich Friedman On Fri, Mar 27, 2015 at 3:28 PM, Michael Worley mwor...@byulaw.net wrote: I agree with Ryan and Doug that RFRA is sound public policy and many of the outrageous claims about RFRA should be condemned. For instance, the claim that EMTs would be able to refuse service to gays and lesbians is just ludicrous. Having said that, I think further enactment of RFRAs is impractical. If by enacting these bills, we are going to increase the perception that religions want to harm gay and lesbians as individuals, that hurts the religions who teach both that we love our neighbor and uphold marriage as between a man and a woman (as most religions today teach). A wiser course is for both sides to come together and build trust. Otherwise, the polarization over these issues will deepen, and future generations will view support of religious rights as hate speech. This was done in Utah, and can be done elsewhere. If one cannot express a view without being demonized by the other side, that chills freedom of speech. A house divided against itself cannot stand and we should act with malice toward none and charity towards all. Accusations that RFRA is based in animus are wrong. On Fri, Mar 27, 2015 at 1:12 PM, Alan E Brownstein aebrownst...@ucdavis.edu wrote: Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (all anti-discrimination laws) because those laws raise fundamentally different questions than the exemption sought in Hobby Lobby, there might be less opposition to state RFRA laws. But the Court failed to do that. 2. When people perceive the political momentum behind a state RFRA law to be fueled by concerns that religious employers or operators of public accommodations will have to hire or serve gay and lesbian job applicants or clients, they will interpret the law as furthering that purpose even if, in fact, it is unlikely to be interpreted by a court to permit such discrimination. Certainly, liberal opponents of such laws may overstate their likely impact. But conservative commentators and advocates who describe state recognition of same-sex marriage and anti-discrimination laws protecting gays and lesbians against discrimination as the greatest threat to religious liberty in American history certainly feed the perception that current RFRA laws are intended to protect discrimination in employment and public accommodations. 3. Given today’s climate, I think if people are serious about enacting a state RFRA law without raising the specter of protecting discrimination, they should exclude civil rights laws for the RFRA laws coverage. If narrow exemptions from civil rights laws are to be considered, they would have to be resolved through specific legislation. Recently, California was able to enact a law that significantly strengthened the duty imposed on employers to accommodate the needs of religious employees by essentially excluding a duty to accommodate a religious obligation to discriminate from its coverage. It is important to remember that there are circumstances in which religious exemptions are justified that have nothing to do with discrimination. Alan *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, March 27, 2015 11:35 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court
Re: Amazing what Hobby Lobby has wrought
If the Hobby Lobby decision that complicity with evil simpliciter, no matter how attenuated, is a substantial burden is followed, then the fears about state RFRAs will be realized. If however, the (in my judgment vain) attempt by Justice Alito to tie the substantiality of the burden to the financial impact of compliance in contravention of their belief that to comply would be complicit with evil and thus a substantial burden on thieir religion is followed, then the fears will not be realized. Or if the states cut off substantial burden at exercise rather than belief with an attenuation or “proximate cause” sort or reasoning, then state RFRAs will be ok again. But, if these are used to permit say-so discrimination against women, blacks, asians, latinos, LGBT, Muslims, Jews, or whomever on the basis of some status, then they will become vehicles of damage to rights — and possibly quite broad ones at that. The damage is not likely to be due to widespread use of complicity-with-evil theories of exclusion of gays or Muslims — because I think those beliefs are not all that widespread in a way that will have deep impacts like Jim Crow. But the damage of the signal sent by states that it is permissible to exclude people because of their status because of your religious beliefs is real and serious and disappointing, to put it mildly. But I hope this ship rights itself soon. Steve On Mar 27, 2015, at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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. -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org ___ 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: Amazing what Hobby Lobby has wrought
“No one”? Well, maybe not its more sensible advocates. On Mar 27, 2015, at 3:22 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: What you call discriminate I call freedom to operate in public square in accordance with well-founded beliefs about marriage. As Doug pointed out, no one is talking about discrimination against gay and lesbian people as such. No religion teaches that, and no case is about a blanket policy of refusing to serve gays and lesbians. The religious liberty concerns are about helping to celebrating a same-sex wedding. The candor that is truly remarkable is that you think it an appropriate use of government coercion to force a 70 year old florist to do this. Here I thought you embraced liberty for all. -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org Two quotes from Louis Armstrong: You blows who you is. If ya ain't got it in ya, ya can't blow it out. ___ 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: Amazing what Hobby Lobby has wrought
What you call discriminate I call freedom to operate in public square in accordance with well-founded beliefs about marriage. As Doug pointed out, no one is talking about discrimination against gay and lesbian people as such. No religion teaches that, and no case is about a blanket policy of refusing to serve gays and lesbians. The religious liberty concerns are about helping to celebrating a same-sex wedding. The candor that is truly remarkable is that you think it an appropriate use of government coercion to force a 70 year old florist to do this. Here I thought you embraced liberty for all. On Fri, Mar 27, 2015 at 2:10 PM, Greg Lipper lip...@au.org wrote: Ryan's candor is refreshing: he very much wants businesses to be able to discriminate against same-sex couples, and he thinks that state RFRAs are important to that goal. That's precisely why sports leagues, pharmaceutical companies, technology companies, and even certain houses of worship are reacting so strongly to the Indiana RFRA. On Mar 27, 2015, at 2:41 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The Green family not paying for an employee's abortifacients, and a 70-year old grandmother not making floral arrangements for a same-sex wedding is becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. Good to know. The reactions to AZ and IN RFRAs strike me much more about the political left wanting to impose its values on Americans than anything to do with religious liberty itself. Strikes me much more about those who favor government coercion to impose comprehensive liberalism no longer mouthing the platitudes of Rawlsian political liberalism. So, yes, you're right, there has been a major shift. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a * Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the * Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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
Re: Amazing what Hobby Lobby has wrought
Interesting that you think that people who want to use this legislationl to discrimiate will wait until July to do so. On Mar 27, 2015, at 1:57 PM, Kniffin, Eric N. eknif...@lrrlaw.com wrote: I would caution against reading too much into a reactionary statement from the NCAA’s Director of Public and Media Relations. Note that the NCAA’s press release says that it will be “work[ing] diligently to assure student-athletes competing in, and visitors attending, next week’s Men’s Final Four in Indianapolis are not impacted negatively” by a law that will not go into effect until July. See https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197. image001.gif Eric N. Kniffin, Of Counsel Lewis Roca Rothgerber LLP 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662 (T) 719.386.3017 | (F) 719.386.3070 eknif...@lrrlaw.com | www.LRRLaw.com -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org Our scientific power has outrun our spiritual power. We have guided missiles and misguided man. - Martin Luther King Jr., Strength to Love, 1963 ___ 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: Amazing what Hobby Lobby has wrought
Paul’s point is supported by those Christians who interpret “shall not be unevenly yoked” broadly as requiring separation — including discrimination against others of other beliefs. I have relatives who (formerly) were of exactly this belief and know some Christians who still adhere to them. On another point made by someone — there is huge difference between a law that permits people to discriminate and one that prohibits it in terms of how people will act. Having to sue to vindicate rights is never the better way to set things up — now it is not a matter of showing discrimination for the person excluded, it is a matter of showing non-substantiality of the religious point (impossible) and the compelling interest of the state and the least restrictive alternative was being used. That burden of proof is much harder to meet. Technically the burden is on the discriminator to show substantiality, but how does one negate a naked claims of a belief that to not discriminate would be to be complicit with evil? Steve On Mar 27, 2015, at 2:43 PM, Finkelman, Paul paul.finkel...@albanylaw.edu wrote: But does this mean that religion is not protected? Will we see claims that members of certain faiths do not want to hire (or even serve) members of other faiths? I think the language of the Indiana law and some of these other laws might allow this. * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu www.paulfinkelman.com * -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org Nothing worth doing is completed in our lifetime, Therefore, we are saved by hope. Nothing true or beautiful or good makes complete sense in any immediate context of history; Therefore, we are saved by faith. Nothing we do, however virtuous, can be accomplished alone. Therefore, we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as from our own; Therefore, we are saved by the final form of love which is forgiveness. Reinhold Neibuhr ___ 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: Amazing what Hobby Lobby has wrought
There is a big difference between a regime where the law says you cannot or should not and a law that says its ok in the way people respond. Most people do not sue most of the time every time their rights are infringed, so the “show me the cases” standard seems a bit off to me. Nonetheless, I think most people will not take advantage of the anti-gay animus of the present impetus behind the law. But that does not mean that that is the society we want to create — where people can legally exclude on the basis of such beliefs. Steve On Mar 27, 2015, at 2:54 PM, Doug Laycock dlayc...@virginia.edu wrote: Show me a case. It just hasn’t happened. We have a woman dead in Kansas for lack of a state RFRA; that’s a real case. These wild discrimination hypotheticals are so far just that – wild hypotheticals. And probably that’s all they will be for the future too. Discrimination against gay customers is entirely legal in Indiana except in Indianapolis and Bloomington. That doesn’t mean that it’s happening, much less that businesses are discriminating and then offering religious justifications. The various Indiana reporters who have called me had not heard any reports of that kind of discrimination. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org “There are no wrong notes in jazz: only notes in the wrong places.” Miles Davis ___ 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: Amazing what Hobby Lobby has wrought
If it is a mistake to prohibit discrimination in hiring based on mutable characteristics and vaguely defined concepts, then clearly we should not prohibit discrimination based on religion. Other prohibited grounds for discrimination might also fall victim to an insistence that the characteristic must be immutable and not vaguely defined. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ryan T. Anderson Sent: Friday, March 27, 2015 12:07 PM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought That's a disputed claim, and the weight of the evidence does not support it. Paul McHugh, MD, University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine, and Gerard V. Bradley, Professor of Law at the University of Notre Dame, explain: [S]ocial science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.[7]http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn7 McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition: Sexual orientation should not be recognized as a newly protected characteristic of individuals under federal law. And neither should gender identity or any cognate concept. In contrast with other characteristics, it is neither discrete nor immutable. There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people.[8]http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn8 Indeed, there is no clear scientific evidence that sexual orientation and gender identity are biologically determined. McHugh and Bradley summarize the relevant scholarly scientific research on sexual orientation and gender identity: Nor is there any convincing evidence that sexual orientation is biologically determined; rather, research tends to show that for some persons and perhaps for a great many, sexual orientation is plastic and fluid; that is, it changes over time. What we do know with certainty about sexual orientation is that it is affective and behavioral-a matter of desire and/or behavior. And gender identity is even more fluid and erratic, so much so that in limited cases an individual could claim to identify with a different gender on successive days at work. Employers should not be obliged by dint of civil and possibly criminal penalties to adjust their workplaces to suit felt needs such as these.[9]http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn9 On Fri, Mar 27, 2015 at 2:52 PM, Finkelman, Paul paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu wrote: Both are immutable characteristics. In that way they are very much alike. Indeed, while one can choose to convert to a new religion, people do not choose to be gay, just as they don't choose to be white or black or some other race. * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296tel:518-439-7296 (p) 518-605-0296tel:518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.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: Amazing what Hobby Lobby has wrought
Are those purported instances based on religious beliefs against serving people
of other religions? (Or, Gordelpus, a specific religion, as you seem to be
implying?) Or on the perception that They are all evial terrorists, which is
not a tenet of any religion I can call to mind.
- Original Message -
From: Paul Finkelman paul.finkel...@yahoo.com
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu
Date: Fri, 27 Mar 2015 19:02:24 + (UTC)
Subject: Re: Amazing what Hobby Lobby has wrought
We have all sorts of stories where business will not serve Muslims in the
news.
Â
**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
andÂ
Scholar-in-Residence Â
National Constitution CenterÂ
Philadelphia, PennsylvaniaÂ
518-439-7296Â (w)
518-605-0296 (c)Â
paul.finkel...@yahoo.comÂ
www.paulfinkelman.com
From: Doug Laycock dlayc...@virginia.edu
To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Friday, March 27, 2015 2:54 PM
Subject: RE: Amazing what Hobby Lobby has wrought
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{}#yiv7506987746 Show me a case. It just hasnât happened. We have a woman
dead in Kansas for lack of a state RFRA; thatâs a real case. These wild
discrimination hypotheticals are so far just that â wild hypotheticals. And
probably thatâs all they will be for the future too. Â Discrimination
against gay customers is entirely legal in Indiana except in Indianapolis and
Bloomington. That doesnât mean that itâs happening, much less that
businesses are discriminating and then offering religious justifications. The
various Indiana reporters who have called me had not heard any reports of
that kind of discrimination. Â Douglas LaycockRobert E. Scott Distinguished
Professor of LawUniversity of Virginia Law School580 Massie
RoadCharlottesville, VAÂ 22903Â Â Â Â 434-243-8546 Â
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, March 27, 2015 2:44 PM
To: Law Religion issues for Law Academics
Subject: RE: Amazing what Hobby Lobby has wrought  But does this mean that
religion is not protected? Â Will we see claims that members of certain
faiths do not want to hire (or even serve) members of other faiths? Â I think
the language of the Indiana law and some of these other laws might allow
this. Â Â Â *
Paul FinkelmanSenior FellowPenn Program on Democracy, Citizenship, and
ConstitutionalismUniversity of PennsylvaniaandScholar-in-Residence National
Constitution CenterPhiladelphia, Pennsylvania 518-439-7296 (p)518-605-0296
(c)Â
paul.finkel...@albanylaw.eduwww.paulfinkelman.com*From:
religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on
behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, March 27, 2015 2:34 PM
To: Law Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wroughtor, imagine if Justice Alito
had not included the references to race and racial in this sentence: Â
The Government has a compelling interest in providing an equal opportunity
to participate in the workforce without regard to race, and prohibitions on
racial discrimination are precisely tailored to achieve that critical goal.
 On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com
wrote:
Before the ruling -- but not before the lower court decisions and the slew of
briefs --including by many Catholic groups that were insistent upon reading
RFRA narrowly back in 1993 -- urging the Court to do at least as much as it
did (indeed, more so). Â The converse point works, too: Â If the Court had
issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition
to state RFRAs (but not nearly the same impetus to enact them, either). Â On
Fri, Mar 27, 2015 at 2
RE: Amazing what Hobby Lobby has wrought
Doug: I appreciate your analysis of the cases. Case law will not limit private action if the actors think the law allows them to discriminate. But, it seems to me that the Indiana law encourages the exact sort of behavior that has not held up in court. Does it really matter if months or years later some court says a server was wrong, or that a restaurant owes a fine? Isn't the NCAA saying, in effect, that this law creates a very hostile environment for many people, including players and fans? Isn't the issue here that the law is sponsored by people who want to discriminate against gays and that they will use the law to see how far they can push it -- and perhaps not only against gays and lesbians but against people other faiths? If a same sex couple walks into a restaurant (or some other place) holding hands, don't you think there is a reasonable likelihood that some restaurant (or hotel or some other establishment) will kick them out, using the law as their shield. You limit your comments to players -- but what about fans? parents? It is worth noting that businesses and some church groups are planning to boycott Indiana. http://www.slate.com/blogs/outward/2015/03/26/disciples_of_christ_protest_indiana_anti_gay_law_more_of_this_please.html * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Doug Laycock [dlayc...@virginia.edu] Sent: Friday, March 27, 2015 2:07 PM To: 'Law Religion issues for Law Academics' Subject: RE: Amazing what Hobby Lobby has wrought The NCAA is the victim of the most absurd propaganda. There is no conceivable way that the Indiana RFRA would affect any athletes next week. There are no cases of religious believers simply refusing to serve gays; the only cases involve weddings, and the religious objectors have lost every wedding case so far, without getting a single vote. I don’t think that anyone has ever won a religious exemption from a discrimination rule in any case not involving a minister. I would like to protect very small vendors in the wedding business, but I am not at all optimistic. And I am confident that none of the Final Four athletes plan to get married while they’re in Indianapolis next weekend. 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 Marty Lederman Sent: Friday, March 27, 2015 1:42 PM To: Law Religion issues for Law Academics Subject: Amazing what Hobby Lobby has wrought http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
Both are immutable characteristics. In that way they are very much alike. Indeed, while one can choose to convert to a new religion, people do not choose to be gay, just as they don't choose to be white or black or some other race. * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ryan T. Anderson [ryantimothyander...@gmail.com] Sent: Friday, March 27, 2015 2:42 PM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought Sexual orientation is not the same as race. On Fri, Mar 27, 2015 at 2:34 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please
Re: Amazing what Hobby Lobby has wrought
The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
The Supreme Court hadn’t decided Hobby Lobby yet, but several federal appeals courts (including the 10th Circuit in the Hobby Lobby case) had already ruled in favor of corporations wanting to exclude contraceptive coverage from their insurance policies, and in the process adopting extremely broad understandings of federal RFRA. So there was certainly concern (well-founded, as it turns out) that the Supreme Court would rule in favor of Hobby Lobby and that it would do so in a manner that vastly changed what most people thought they were supporting in 1993. Gregory M. Lipper Senior Litigation Counsel Americans United for Separation of Church State (202) 466-3234 x210 On Mar 27, 2015, at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Amazing what Hobby Lobby has wrought
Exactly my point: Justice Alito basically went out of his way to signal that the Court would treat them differently when it came to exemptions from antidiscrimination laws. Small wonder, then, that Indiana legislators were eager to enact the state RFRA -- and that supporters of gay rights are now considering pulling their business from the state. On Fri, Mar 27, 2015 at 2:42 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: Sexual orientation is not the same as race. On Fri, Mar 27, 2015 at 2:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a *Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to
RE: Amazing what Hobby Lobby has wrought
Covering closely held corporations is one issue. Discrimination is a different issue, and we know how courts have treated it. Making women do without contraception is yet a third issue, and we know that Hobby Lobby did not reach that issue, and found a solution that preserved free contraception. And pretty clearly there were not five votes for making female employees do without. 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 Marty Lederman Sent: Friday, March 27, 2015 2:48 PM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought I surely hope Doug is right that the warnings about the possible impact of RFRAs in the commercial sphere will turn out to be a Big Lie. But that is hardly what Doug and others said to the Court in HL; instead, they urged the Court to deviate from its long, virtually unbroken tradition of denying exemptions in the commercial sector; urged a highly deferential posture toward claims of substantial burden; and argued for imposing far greater burdens on the government on the compelling interest and narrow tailoring side of the equation. I addressed this tension in greater detail, before the Court's decision, here: http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html On Fri, Mar 27, 2015 at 2:24 PM, Doug Laycock dlayc...@virginia.edu mailto:dlayc...@virginia.edu wrote: Right. The widespread exaggeration of what Hobby Lobby did may be adding fuel to the fire. But this propaganda began before Hobby Lobby, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 tel:434-243-8546 434-243-8546 From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [mailto: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu] On Behalf Of Ryan T. Anderson Sent: Friday, March 27, 2015 2:16 PM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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 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
Re: Amazing what Hobby Lobby has wrought
That's a disputed claim, and the weight of the evidence does not support it. Paul McHugh, MD, University Distinguished Service Professor of Psychiatry at the Johns Hopkins University School of Medicine, and Gerard V. Bradley, Professor of Law at the University of Notre Dame, explain: [S]ocial science research continues to show that sexual orientation, unlike race, color, and ethnicity, is neither a clearly defined concept nor an immutable characteristic of human beings. Basing federal employment law on a vaguely defined concept such as sexual orientation, especially when our courts have a wise precedent of limiting suspect classes to groups that have a clearly-defined shared characteristic, would undoubtedly cause problems for many well-meaning employers.[7] http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn7 McHugh and Bradley caution against elevating sexual orientation and gender identity to the status of protected characteristics because of the lack of clear definition: Sexual orientation should not be recognized as a newly protected characteristic of individuals under federal law. And neither should gender identity or any cognate concept. In contrast with other characteristics, it is neither discrete nor immutable. There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people.[8] http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn8 Indeed, there is no clear scientific evidence that sexual orientation and gender identity are biologically determined. McHugh and Bradley summarize the relevant scholarly scientific research on sexual orientation and gender identity: Nor is there any convincing evidence that sexual orientation is biologically determined; rather, research tends to show that for some persons and perhaps for a great many, sexual orientation is plastic and fluid; that is, it changes over time. What we do know with certainty about sexual orientation is that it is affective and behavioral--a matter of desire and/or behavior. And gender identity is even more fluid and erratic, so much so that in limited cases an individual could claim to identify with a different gender on successive days at work. Employers should not be obliged by dint of civil and possibly criminal penalties to adjust their workplaces to suit felt needs such as these.[9] http://www.heritage.org/research/reports/2013/11/enda-threatens-fundamental-civil-liberties#_ftn9 On Fri, Mar 27, 2015 at 2:52 PM, Finkelman, Paul paul.finkel...@albanylaw.edu wrote: Both are immutable characteristics. In that way they are very much alike. Indeed, while one can choose to convert to a new religion, people do not choose to be gay, just as they don't choose to be white or black or some other race. * Paul Finkelman *Senior Fellow* *Penn Program on Democracy, Citizenship, and Constitutionalism* *University of Pennsylvania* *and* *Scholar-in-Residence * *National Constitution Center* *Philadelphia, Pennsylvania* 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu www.paulfinkelman.com * -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Ryan T. Anderson [ ryantimothyander...@gmail.com] *Sent:* Friday, March 27, 2015 2:42 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought Sexual orientation is not the same as race. On Fri, Mar 27, 2015 at 2:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a *Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty
Re: Amazing what Hobby Lobby has wrought
Exactly my point: If this is what the NCAA concluded it had to do to counter the p.r. debacle with respect to a law *that has not even gone into effect yet*, imagine how it, and other large organizations, will treat the prospect of holding large events/conventions in Indiana going forward. Another revealing data point: Bill Clinton pushed hard for RFRA (and for giving it teeth in the CTA8 bankruptcy case!), and then worked diligently to keep the coalition together for RLUIPA; yet within hours of Gov. Pence signing the bill, Hillary Clinton tweeted this: Sad this new Indiana law can happen in America today. We shouldn't discriminate against ppl bc of who they love. The shift is unimaginable without *Hobby Lobby* (and *Elane Photography*). Of course, I agree with Doug, and with Chip, in predicting that the courts will not ultimately rule in favor of religious discriminators. But this legislation was obviously designed to offer them the serious prospect of exemptions (that's what prompted its support in the legislature in the first place); and the efforts of the *Hobby Lobby* Justices, and those who filed on Hobby Lobby's behalf, to read RFRA to be much more robust than the pre*-Smith* exemption regime have put RFRA in a far different light than how any of us (save Michael Paulsen) understood it back in the mid-1990s. On Fri, Mar 27, 2015 at 1:57 PM, Kniffin, Eric N. eknif...@lrrlaw.com wrote: I would caution against reading too much into a reactionary statement from the NCAA’s Director of Public and Media Relations. Note that the NCAA’s press release says that it will be “work[ing] diligently to assure student-athletes competing in, and visitors attending*, next week’s* Men’s Final Four in Indianapolis are not impacted negatively” by a law that will not go into effect until *July*. See https://iga.in.gov/legislative/2015/bills/senate/101#document-92bab197. *Eric N. Kniffin, Of Counsel* *Lewis Roca Rothgerber LLP* *90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662* *(T) 719.386.3017 719.386.3017 | (F) 719.386.3070 719.386.3070* *eknif...@lrrlaw.com eknif...@lrrlaw.com** | www.LRRLaw.com http://www.lrrlaw.com/* *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, March 27, 2015 11:42 AM *To:* Law Religion issues for Law Academics *Subject:* Amazing what Hobby Lobby has wrought http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. -- This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to
Re: Amazing what Hobby Lobby has wrought
Sexual orientation is not the same as race. On Fri, Mar 27, 2015 at 2:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a *Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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. ___ 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: Amazing what Hobby Lobby has wrought
If the cases I am talking about arise the discriminating party may lose. Doug and I agree on that. But the law encourages this kind of discrimination (as well as against people of other faiths), and encourages people to push to see how far they can extend their private prejudices into the public sphere. So, the court acting years after the discrimination takes place is hardly a remedy, and it means the person facing the discrimination must initiate legal action. Someone visiting Indiana for a basketball game is unlikely to return to sue. Would't an anti-discrimination law be a better route? You cannot refuse to do for one person what you do for other? That is what this is all about. It is about the sanctioning discrimination. No minister ever has to perform a wedding. So that is off the table. But, people who sell cakes do not perform marriages. They sell cakes. * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Doug Laycock [dlayc...@virginia.edu] Sent: Friday, March 27, 2015 2:46 PM To: 'Law Religion issues for Law Academics' Subject: RE: Amazing what Hobby Lobby has wrought The wedding cases are special (although not in the view of courts so far), because many religious folks understand marriage to be an inherently religious relationship and a wedding to be an inherently religious event. There are no cases about alleged religious reasons for discriminating against gays generally (save the one in Minnesota 30 years ago, involving employment rather than customers), and I don’t know any denomination that teaches discrimination against gays generally. So cases like Paul’s hypothetical have not arisen, are not likely to arise, and if one of two of them happens, the religious claimant will lose and the precedent will be clear for any would be imitators. 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 Finkelman, Paul Sent: Friday, March 27, 2015 2:27 PM To: Law Religion issues for Law Academics Subject: RE: Amazing what Hobby Lobby has wrought Doug: I appreciate your analysis of the cases. Case law will not limit private action if the actors think the law allows them to discriminate. But, it seems to me that the Indiana law encourages the exact sort of behavior that has not held up in court. Does it really matter if months or years later some court says a server was wrong, or that a restaurant owes a fine? Isn't the NCAA saying, in effect, that this law creates a very hostile environment for many people, including players and fans? Isn't the issue here that the law is sponsored by people who want to discriminate against gays and that they will use the law to see how far they can push it -- and perhaps not only against gays and lesbians but against people other faiths? If a same sex couple walks into a restaurant (or some other place) holding hands, don't you think there is a reasonable likelihood that some restaurant (or hotel or some other establishment) will kick them out, using the law as their shield. You limit your comments to players -- but what about fans? parents? It is worth noting that businesses and some church groups are planning to boycott Indiana. http://www.slate.com/blogs/outward/2015/03/26/disciples_of_christ_protest_indiana_anti_gay_law_more_of_this_please.html * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Doug Laycock [dlayc...@virginia.edu] Sent: Friday, March 27, 2015 2:07 PM To: 'Law Religion issues for Law Academics' Subject: RE: Amazing what Hobby Lobby has wrought The NCAA is the victim of the most absurd propaganda. There is no conceivable way that the Indiana RFRA would affect any athletes next week. There are no cases of religious
RE: Amazing what Hobby Lobby has wrought
The NCAA is the victim of the most absurd propaganda. There is no conceivable way that the Indiana RFRA would affect any athletes next week. There are no cases of religious believers simply refusing to serve gays; the only cases involve weddings, and the religious objectors have lost every wedding case so far, without getting a single vote. I don’t think that anyone has ever won a religious exemption from a discrimination rule in any case not involving a minister. I would like to protect very small vendors in the wedding business, but I am not at all optimistic. And I am confident that none of the Final Four athletes plan to get married while they’re in Indianapolis next weekend. 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 Marty Lederman Sent: Friday, March 27, 2015 1:42 PM To: Law Religion issues for Law Academics Subject: Amazing what Hobby Lobby has wrought http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
Right. The widespread exaggeration of what Hobby Lobby did may be adding fuel to the fire. But this propaganda began before Hobby Lobby, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. 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 Ryan T. Anderson Sent: Friday, March 27, 2015 2:16 PM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-reli gious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a *Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a *Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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: Amazing what Hobby Lobby has wrought
The Green family not paying for an employee's abortifacients, and a 70-year old grandmother not making floral arrangements for a same-sex wedding is becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. Good to know. The reactions to AZ and IN RFRAs strike me much more about the political left wanting to impose its values on Americans than anything to do with religious liberty itself. Strikes me much more about those who favor government coercion to impose comprehensive liberalism no longer mouthing the platitudes of Rawlsian political liberalism. So, yes, you're right, there has been a major shift. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a *Lee*-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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. ___ 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: Amazing what Hobby Lobby has wrought
The wedding cases are special (although not in the view of courts so far), because many religious folks understand marriage to be an inherently religious relationship and a wedding to be an inherently religious event. There are no cases about alleged religious reasons for discriminating against gays generally (save the one in Minnesota 30 years ago, involving employment rather than customers), and I don't know any denomination that teaches discrimination against gays generally. So cases like Paul's hypothetical have not arisen, are not likely to arise, and if one of two of them happens, the religious claimant will lose and the precedent will be clear for any would be imitators. 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 Finkelman, Paul Sent: Friday, March 27, 2015 2:27 PM To: Law Religion issues for Law Academics Subject: RE: Amazing what Hobby Lobby has wrought Doug: I appreciate your analysis of the cases. Case law will not limit private action if the actors think the law allows them to discriminate. But, it seems to me that the Indiana law encourages the exact sort of behavior that has not held up in court. Does it really matter if months or years later some court says a server was wrong, or that a restaurant owes a fine? Isn't the NCAA saying, in effect, that this law creates a very hostile environment for many people, including players and fans? Isn't the issue here that the law is sponsored by people who want to discriminate against gays and that they will use the law to see how far they can push it -- and perhaps not only against gays and lesbians but against people other faiths? If a same sex couple walks into a restaurant (or some other place) holding hands, don't you think there is a reasonable likelihood that some restaurant (or hotel or some other establishment) will kick them out, using the law as their shield. You limit your comments to players -- but what about fans? parents? It is worth noting that businesses and some church groups are planning to boycott Indiana. http://www.slate.com/blogs/outward/2015/03/26/disciples_of_christ_protest_in diana_anti_gay_law_more_of_this_please.html * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) mailto:paul.finkel...@albanylaw.edu paul.finkel...@albanylaw.edu http://www.paulfinkelman.com/ www.paulfinkelman.com * _ From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Doug Laycock [dlayc...@virginia.edu] Sent: Friday, March 27, 2015 2:07 PM To: 'Law Religion issues for Law Academics' Subject: RE: Amazing what Hobby Lobby has wrought The NCAA is the victim of the most absurd propaganda. There is no conceivable way that the Indiana RFRA would affect any athletes next week. There are no cases of religious believers simply refusing to serve gays; the only cases involve weddings, and the religious objectors have lost every wedding case so far, without getting a single vote. I don't think that anyone has ever won a religious exemption from a discrimination rule in any case not involving a minister. I would like to protect very small vendors in the wedding business, but I am not at all optimistic. And I am confident that none of the Final Four athletes plan to get married while they're in Indianapolis next weekend. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: mailto:religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, March 27, 2015 1:42 PM To: Law Religion issues for Law Academics Subject: Amazing what Hobby Lobby has wrought http://www.ncaa.org/about/resources/media-center/news/statement-indiana-reli gious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming
RE: Amazing what Hobby Lobby has wrought
Show me a case. It just hasn't happened. We have a woman dead in Kansas for lack of a state RFRA; that's a real case. These wild discrimination hypotheticals are so far just that - wild hypotheticals. And probably that's all they will be for the future too. Discrimination against gay customers is entirely legal in Indiana except in Indianapolis and Bloomington. That doesn't mean that it's happening, much less that businesses are discriminating and then offering religious justifications. The various Indiana reporters who have called me had not heard any reports of that kind of discrimination. 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 Finkelman, Paul Sent: Friday, March 27, 2015 2:44 PM To: Law Religion issues for Law Academics Subject: RE: Amazing what Hobby Lobby has wrought But does this mean that religion is not protected? Will we see claims that members of certain faiths do not want to hire (or even serve) members of other faiths? I think the language of the Indiana law and some of these other laws might allow this. * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edu mailto:paul.finkel...@albanylaw.edu www.paulfinkelman.com http://www.paulfinkelman.com/ * _ From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Friday, March 27, 2015 2:34 PM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com mailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-reli gious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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
Re: Amazing what Hobby Lobby has wrought
We have all sorts of stories where business will not serve Muslims in the news.
**
Paul Finkelman, Ph.D.
Senior Fellow
Penn Program on Democracy, Citizenship, and Constitutionalism
University of Pennsylvania
and
Scholar-in-Residence
National Constitution Center
Philadelphia, Pennsylvania
518-439-7296 (w)
518-605-0296 (c)
paul.finkel...@yahoo.com
www.paulfinkelman.com
From: Doug Laycock dlayc...@virginia.edu
To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu
Sent: Friday, March 27, 2015 2:54 PM
Subject: RE: Amazing what Hobby Lobby has wrought
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{}#yiv7506987746 Show me a case. It just hasn’t happened. We have a woman dead
in Kansas for lack of a state RFRA; that’s a real case. These wild
discrimination hypotheticals are so far just that – wild hypotheticals. And
probably that’s all they will be for the future too. Discrimination against
gay customers is entirely legal in Indiana except in Indianapolis and
Bloomington. That doesn’t mean that it’s happening, much less that businesses
are discriminating and then offering religious justifications. The various
Indiana reporters who have called me had not heard any reports of that kind of
discrimination. Douglas LaycockRobert E. Scott Distinguished Professor of
LawUniversity of Virginia Law School580 Massie RoadCharlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Finkelman, Paul
Sent: Friday, March 27, 2015 2:44 PM
To: Law Religion issues for Law Academics
Subject: RE: Amazing what Hobby Lobby has wrought But does this mean that
religion is not protected? Will we see claims that members of certain faiths
do not want to hire (or even serve) members of other faiths? I think the
language of the Indiana law and some of these other laws might allow this.
*
Paul FinkelmanSenior FellowPenn Program on Democracy, Citizenship, and
ConstitutionalismUniversity of PennsylvaniaandScholar-in-Residence National
Constitution CenterPhiladelphia, Pennsylvania 518-439-7296 (p)518-605-0296 (c)
paul.finkel...@albanylaw.eduwww.paulfinkelman.com*From:
religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on
behalf of Marty Lederman [lederman.ma...@gmail.com]
Sent: Friday, March 27, 2015 2:34 PM
To: Law Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wroughtor, imagine if Justice Alito
had not included the references to race and racial in this sentence: The
Government has a compelling interest in providing an equal opportunity to
participate in the workforce without regard to race, and prohibitions on racial
discrimination are precisely tailored to achieve that critical goal. On Fri,
Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.com wrote:
Before the ruling -- but not before the lower court decisions and the slew of
briefs --including by many Catholic groups that were insistent upon reading
RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did
(indeed, more so). The converse point works, too: If the Court had issued a
Lee-like 9-0 decision, there wouldn't now be much of an opposition to state
RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27,
2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.com wrote:
The reaction to Indiana strikes me as similar to Arizona. Arizona took place
well before Hobby Lobby ruling. So the causal relationship you suggest here
seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM,
Marty Lederman lederman.ma...@gmail.com wrote:
http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill
If the new Indiana RFRA had been enacted last year, I think it's fair to say,
the NCAA would have pulled the Final Four out of Indianapolis; and I think it's
safe to predict that the NCAA tourney won't
RE: Amazing what Hobby Lobby has wrought
And I don't think we want to create a society where we the only exercise of religion we protect is religious exercise that the elites are comfortable with. Perhaps I'm misreading them, but it seems that many contributors to this list are only fans of protecting religious liberty in the milquetoast scenarios where it doesn't much matter to most people if the religious adherent gets to practice his or her faith. I guess that's a nice start, but it doesn't exactly merit inclusion in the next edition of Profiles in Courage.The reality is that we live in a pluralistic society. People who believe strongly in same sex marriage aren't going away in our society and people who hold to strong religious beliefs that require them to act in certain ways consistent with their faith when asked to participate in some aspect of a same sex marriage aren't going away either.Instead of just trying to drum one group into submission, I'd submit that there really are ways to accommodate both through a sensible legal regime that accommodates religious exercise without leading to open season against gay people.Doug and Eugene have offered thoughts along these lines in the wedding vendor context that draw the line in different places. It would be encouraging to see more engagement with those sorts of ideas that recognize the reality of our pluralistic society and the need of a legal regime that can find ways to respect the diverse consciences of its citizens.The lesson that Hobby Lobby should have wrought is that it is really is possible to accommodate both the government interest and the conscience of the religious adherent in ways that respect the pluralistic nature of our society. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Friday, March 27, 2015 4:29 PM To: Law Religion Law List Subject: Re: Amazing what Hobby Lobby has wrought There is a big difference between a regime where the law says you cannot or should not and a law that says its ok in the way people respond. Most people do not sue most of the time every time their rights are infringed, so the show me the cases standard seems a bit off to me. Nonetheless, I think most people will not take advantage of the anti-gay animus of the present impetus behind the law. But that does not mean that that is the society we want to create - where people can legally exclude on the basis of such beliefs. Steve On Mar 27, 2015, at 2:54 PM, Doug Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Show me a case. It just hasn't happened. We have a woman dead in Kansas for lack of a state RFRA; that's a real case. These wild discrimination hypotheticals are so far just that - wild hypotheticals. And probably that's all they will be for the future too. Discrimination against gay customers is entirely legal in Indiana except in Indianapolis and Bloomington. That doesn't mean that it's happening, much less that businesses are discriminating and then offering religious justifications. The various Indiana reporters who have called me had not heard any reports of that kind of discrimination. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -- Prof. Steven D. Jamar Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org There are no wrong notes in jazz: only notes in the wrong places. Miles Davis ___ 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: Amazing what Hobby Lobby has wrought
specific legislation. Recently, California was able to enact a law that significantly strengthened the duty imposed on employers to accommodate the needs of religious employees by essentially excluding a duty to accommodate a religious obligation to discriminate from its coverage. It is important to remember that there are circumstances in which religious exemptions are justified that have nothing to do with discrimination. Alan From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, March 27, 2015 11:35 AM To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought or, imagine if Justice Alito had not included the references to race and racial in this sentence: The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal. On Fri, Mar 27, 2015 at 2:28 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Before the ruling -- but not before the lower court decisions and the slew of briefs --including by many Catholic groups that were insistent upon reading RFRA narrowly back in 1993 -- urging the Court to do at least as much as it did (indeed, more so). The converse point works, too: If the Court had issued a Lee-like 9-0 decision, there wouldn't now be much of an opposition to state RFRAs (but not nearly the same impetus to enact them, either). On Fri, Mar 27, 2015 at 2:15 PM, Ryan T. Anderson ryantimothyander...@gmail.commailto:ryantimothyander...@gmail.com wrote: The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott in Indiana! How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the Hobby Lobby Court, like the Court in Lee, Jimmy Swaggart, Tony Susan Alamo, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Michael Worley J.D., Brigham Young University ___ To post, send message
RE: Amazing what Hobby Lobby has wrought
Derek is offering exactly the kind of argument that as used to support segregation or the rights of people not to have to serve blacks, it that is what they chose to do. But, even if Derek's solution (to allow discrimination) is approved, where does ti end? Doug (in an earlier post) wants to apply it to cake bakers; How about Tux makers? Or Tux renters? or shoe stores? Or dress stores. or florists? Or car rentals? Or Limo rentals. And will it stop at weddings? What about a cake or Limo for an anniversary party? Or a baby shower for a same sex couple? Where do you draw the line? Cakes, Dresses, Limos? Party favors? Ice cream? Does anyone have a way make a clear case for one over the other. And it does not appear to be limited to same sex issues. What happens when a Wiccan or a Satanist walks into the cake baker and says I need a wedding cake for our Wiccan wedding? I don't recall (I could be wrong) seeing any proposed statutes that prohibit discriminating against anyone because of *their* religion? On the contrary, all these laws seem to allow discrimination against anyone if based on a religious claim, even though NO ONE is being asked to participate in a same sex marriage, but only being asked to sell their goods to all purchasers. There have been instances of businesses refusing to serve Muslims (and of course that was once common for Jews in lots of places). Are we ready to allow people to refuse to sell to people because they have the wrong religion? * Paul Finkelman Senior Fellow Penn Program on Democracy, Citizenship, and Constitutionalism University of Pennsylvania and Scholar-in-Residence National Constitution Center Philadelphia, Pennsylvania 518-439-7296 (p) 518-605-0296 (c) paul.finkel...@albanylaw.edumailto:paul.finkel...@albanylaw.edu www.paulfinkelman.comhttp://www.paulfinkelman.com/ * From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Gaubatz, Derek [dgaub...@imb.org] Sent: Friday, March 27, 2015 5:53 PM To: Law Religion issues for Law Academics Subject: RE: Amazing what Hobby Lobby has wrought And I don’t think we want to create a society where we the only exercise of religion we protect is religious exercise that the elites are comfortable with. Perhaps I’m misreading them, but it seems that many contributors to this list are only fans of protecting religious liberty in the milquetoast scenarios where it doesn’t much matter to most people if the religious adherent gets to practice his or her faith. I guess that’s a nice start, but it doesn’t exactly merit inclusion in the next edition of Profiles in Courage.The reality is that we live in a pluralistic society. People who believe strongly in same sex marriage aren’t going away in our society and people who hold to strong religious beliefs that require them to act in certain ways consistent with their faith when asked to participate in some aspect of a same sex marriage aren’t going away either.Instead of just trying to drum one group into submission, I’d submit that there really are ways to accommodate both through a sensible legal regime that accommodates religious exercise without leading to open season against gay people.Doug and Eugene have offered thoughts along these lines in the wedding vendor context that draw the line in different places. It would be encouraging to see more engagement with those sorts of ideas that recognize the reality of our pluralistic society and the need of a legal regime that can find ways to respect the diverse consciences of its citizens.The lesson that Hobby Lobby should have wrought is that it is really is possible to accommodate both the government interest and the conscience of the religious adherent in ways that respect the pluralistic nature of our society. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Friday, March 27, 2015 4:29 PM To: Law Religion Law List Subject: Re: Amazing what Hobby Lobby has wrought There is a big difference between a regime where the law says you cannot or should not and a law that says its ok in the way people respond. Most people do not sue most of the time every time their rights are infringed, so the “show me the cases” standard seems a bit off to me. Nonetheless, I think most people will not take advantage of the anti-gay animus of the present impetus behind the law. But that does not mean that that is the society we want to create — where people can legally exclude on the basis of such beliefs. Steve On Mar 27, 2015, at 2:54 PM, Doug Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Show me a case. It just hasn’t happened. We have a woman dead in Kansas for lack of a state RFRA; that’s a real case. These wild
Re: Amazing what Hobby Lobby has wrought
Josh Blackman has done a good job of addressing claims that the Indiana RFRA goes beyond the original federal law: http://joshblackman.com/blog/2015/03/26/comparing-the-federal-rfra-and-the-indiana-rfra/ [cid:image001.gif@01D01458.B0F295B0] Eric N. Kniffin, Of Counsel Lewis Roca Rothgerber LLP 90 S Cascade Ave Suite 1100 | Colorado Springs, CO 80903-1662x-apple-data-detectors://0/2 (T) 719.386.3017tel:719.386.3017| (F) 719.386.3070tel:719.386.3070 eknif...@lrrlaw.commailto:eknif...@lrrlaw.com |www.LRRLaw.comhttp://www.lrrlaw.com/ This message and any attachments are intended only for the use of the individual or entity to which they are addressed. If the reader of this message or an attachment is not the intended recipient or the employee or agent responsible for delivering the message or attachment to the intended recipient you are hereby notified that any dissemination, distribution or copying of this message or any attachment is strictly prohibited. If you have received this communication in error, please notify us immediately by replying to the sender. The information transmitted in this message and any attachments may be privileged, is intended only for the personal and confidential use of the intended recipients, and is covered by the Electronic Communications Privacy Act, 18 U.S.C. §2510-2521tel:2510-2521. On Mar 27, 2015, at 8:26 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: At least 3 circuits have already interpreted the federal RFRA to provide a defense in a case involving private parties and the Obama DOJ has also endorsed that position in the past. So, the Indiana RFRA is not breaking new ground here. From: Nelson Tebbe Sent: Friday, March 27, 2015 5:59 PM To: Law Religion issues for Law Academics Reply To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought The Indiana law is not the same as the federal RFRA. This section of the new Indiana RFRA makes it applicable in suits between private parties: Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding... I imagine this provision was added to respond to Elane Photography and similar cases. There, a same-sex couple sued a photographer who refused to photograph their ceremony on religious grounds. The court ruled in favor of the couple. It turned away the state RFRA argument by the photographer on the ground that the state RFRA did not apply in suits between private parties. It seems like members of the list disagree on whether Elane Photography involved discrimination, but it clearly involved a civil rights law. On Mar 27, 2015, at 3:46 PM, Richard Friedman rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote: I've looked over the new Indiana law, and what jumped out at me was not that this looked like a law designed to allow people to decline to render services to others on the grounds of sexual orientation; it looks more like the original RFRA and a law designed to overcome the results of cases like Smith. But I understand that context is everything. Can somebody tell me whether the nature of the debate in Indiana indicated that the law was meant to accomplish the former objective? And if so, how far did the intent reach? Just to ministers being asked to participate in a marriage? To cake makers or florists asked to facilitate the celebration of a marriage? To dry cleaners who might not want to serve a gay person (but are there any people who claim a right not to do so on religious grounds)? Rich Friedman On Fri, Mar 27, 2015 at 3:28 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I agree with Ryan and Doug that RFRA is sound public policy and many of the outrageous claims about RFRA should be condemned. For instance, the claim that EMTs would be able to refuse service to gays and lesbians is just ludicrous. Having said that, I think further enactment of RFRAs is impractical. If by enacting these bills, we are going to increase the perception that religions want to harm gay and lesbians as individuals, that hurts the religions who teach both that we love our neighbor and uphold marriage as between a man and a woman (as most religions today teach). A wiser course is for both sides to come together and build trust. Otherwise, the polarization over these issues will deepen, and future generations will view support of religious rights as hate speech. This was done in Utah, and can be done elsewhere. If one cannot express a view without being demonized by the other side, that chills freedom of speech. A house divided against itself cannot stand and we should act with malice
Re: Amazing what Hobby Lobby has wrought
At least 3 circuits have already interpreted the federal RFRA to provide a defense in a case involving private parties and the Obama DOJ has also endorsed that position in the past. So, the Indiana RFRA is not breaking new ground here. From: Nelson Tebbe Sent: Friday, March 27, 2015 5:59 PM To: Law Religion issues for Law Academics Reply To: Law Religion issues for Law Academics Subject: Re: Amazing what Hobby Lobby has wrought The Indiana law is not the same as the federal RFRA. This section of the new Indiana RFRA makes it applicable in suits between private parties: Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding... I imagine this provision was added to respond to Elane Photography and similar cases. There, a same-sex couple sued a photographer who refused to photograph their ceremony on religious grounds. The court ruled in favor of the couple. It turned away the state RFRA argument by the photographer on the ground that the state RFRA did not apply in suits between private parties. It seems like members of the list disagree on whether Elane Photography involved discrimination, but it clearly involved a civil rights law. On Mar 27, 2015, at 3:46 PM, Richard Friedman rdfrd...@umich.edumailto:rdfrd...@umich.edu wrote: I've looked over the new Indiana law, and what jumped out at me was not that this looked like a law designed to allow people to decline to render services to others on the grounds of sexual orientation; it looks more like the original RFRA and a law designed to overcome the results of cases like Smith. But I understand that context is everything. Can somebody tell me whether the nature of the debate in Indiana indicated that the law was meant to accomplish the former objective? And if so, how far did the intent reach? Just to ministers being asked to participate in a marriage? To cake makers or florists asked to facilitate the celebration of a marriage? To dry cleaners who might not want to serve a gay person (but are there any people who claim a right not to do so on religious grounds)? Rich Friedman On Fri, Mar 27, 2015 at 3:28 PM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I agree with Ryan and Doug that RFRA is sound public policy and many of the outrageous claims about RFRA should be condemned. For instance, the claim that EMTs would be able to refuse service to gays and lesbians is just ludicrous. Having said that, I think further enactment of RFRAs is impractical. If by enacting these bills, we are going to increase the perception that religions want to harm gay and lesbians as individuals, that hurts the religions who teach both that we love our neighbor and uphold marriage as between a man and a woman (as most religions today teach). A wiser course is for both sides to come together and build trust. Otherwise, the polarization over these issues will deepen, and future generations will view support of religious rights as hate speech. This was done in Utah, and can be done elsewhere. If one cannot express a view without being demonized by the other side, that chills freedom of speech. A house divided against itself cannot stand and we should act with malice toward none and charity towards all. Accusations that RFRA is based in animus are wrong. On Fri, Mar 27, 2015 at 1:12 PM, Alan E Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: Three quick points: 1. As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor but issued a narrow opinion (narrow in its reasoning and holding) making it clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims challenging anti-discrimination laws (all anti-discrimination laws) because those laws raise fundamentally different questions than the exemption sought in Hobby Lobby, there might be less opposition to state RFRA laws. But the Court failed to do that. 2. When people perceive the political momentum behind a state RFRA law to be fueled by concerns that religious employers or operators of public accommodations will have to hire or serve gay and lesbian job applicants or clients, they will interpret the law as furthering that purpose even if, in fact, it is unlikely to be interpreted by a court to permit such discrimination. Certainly, liberal opponents of such laws may overstate their likely impact. But conservative commentators and advocates who describe state recognition of same-sex marriage and anti-discrimination laws protecting gays and lesbians against discrimination as the greatest threat to religious liberty in American history certainly feed
Re: Amazing what Hobby Lobby has wrought
I have to disagree with Doug and Ryan that the earlier controversy over the Arizona bill casts any doubt on Marty's point about the consequences of the Hobby Lobby decision. Recall, the Arizona bill wasn't an initial RFRA enactment. Rather, it was a proposed amendment to the existing Arizona RFRA that would have explicitly expanded the law to cover corporate entities. In other words, the Arizona bill was a failed attempt to do through statutory amendment exactly what Hobby Lobby did a few months later through interpretation. Thus, it is not at all surprising that the Arizona bill generated the same controversy that the Hobby Lobby decision did. Also, before dismissing concerns over the Arizona bill as propaganda, it might be well to recall that the national firestorm over the bill was preceded by its legislative sponsor telling a reporter that the bill might allow hotels to refuse to rent rooms to same-sex couples. It hardly seems fair to malign the LGBT community for taking sponsors of legislation at their word, whatever assurances us law professors may give them separately. Like many on this list, Doug has long been championing RFRAs for reasons that transcend today's controversies over the propriety of granting religious exemptions to commercial businesses and granting religious exemptions from civil rights laws. And I can understand why academic supporters of RFRAs like Doug are frustrated that their general effort to right the wrong of Smith is now getting identified so closely with resistance to LGBT rights. But the solution seems simple, and it is the one Alan suggested in his earlier post: exclude civil rights claims from the coverage of state RFRAs. Alas, this likely won't happen, because the driving political force behind the current push for state RFRAs is all about securing exemptions from civil rights laws in the context of LGBT rights. Don't take my word for it. Here are the two lead talking points from Advance America, one of the leading advocacy organizations that helped secure passage of the Indiana RFRA: - *Christian* bakers, florists and photographers should not be punished for *refusing to participate* in a *homosexual marriage!* - A *Christian business* should *not* be punished for *refusing to allow* a man to use the women’s restroom! Again, we should not blame the LGBT community for taking the bill's supporters at their word, regardless of the fact that law professors are uncertain that the bill will accomplish what its supporters are seeking. - Jim On Fri, Mar 27, 2015 at 11:24 AM, Doug Laycock dlayc...@virginia.edu wrote: Right. The widespread exaggeration of what *Hobby Lobby* did may be adding fuel to the fire. But this propaganda began before *Hobby Lobby*, and it worked, so it continues. This is really the Big Lie in action. And a lot of people who know better feel compelled to go along. I know that is true of some of the ACLU lawyers who have brought RFRA claims for clients; I obviously have no way to know, but it may well be true of Hillary Clinton. 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 *Ryan T. Anderson *Sent:* Friday, March 27, 2015 2:16 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Amazing what Hobby Lobby has wrought The reaction to Indiana strikes me as similar to Arizona. Arizona took place well before Hobby Lobby ruling. So the causal relationship you suggest here seems off. Something else explains this. On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious
Re: Amazing what Hobby Lobby has wrought
http://www.nytimes.com/2015/03/28/us/politics/indiana-law-denounced-as-invitation-to-discriminate-against-gays.html On Fri, Mar 27, 2015 at 1:41 PM, Marty Lederman lederman.ma...@gmail.com wrote: http://www.ncaa.org/about/resources/media-center/news/statement-indiana-religious-freedom-bill If the new Indiana RFRA had been enacted last year, I think it's fair to say, the NCAA would have pulled the Final Four out of Indianapolis; and I think it's safe to predict that the NCAA tourney won't be coming back to Indiana anytime soon. Think about that -- a basketball boycott *in Indiana! *How far we've come . . . RFRA has gone from being benign, milquetoast legislation that garnered support across the political spectrum 20 years ago -- like Chevrolet and apple pie -- to becoming the political equivalent of a state adopting the confederate flag, or refusing to recognize MLK Day. I doubt this would have happened if the *Hobby Lobby* Court, like the Court in *Lee*, *Jimmy Swaggart*, *Tony Susan Alamo*, etc., would have rejected the accommodation claim 9-0. Of course, the market will ultimately undo the damage: In order to preserve states' economic competitiveness, their RFRAs will either be repealed or construed to recreate the pre-Smith FEC regime. The more interesting question is what Justice Alito's initiative augurs for the future of religious accommodations more broadly. ___ To post, send message to Religionlaw@lists.ucla.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.
