RE: Hobby Lobby/Ellen Katz
Because my concern applies to other areas and this is a religion law list, I understand that my comment (4) needs more explanation. 1. The extreme partisanship in our political system needs ameliorating. Some years ago I wrote that in the confirmation process Senators needed to exercise restraint in the consideration of prospective Justices because to tie them to politically acceptable positions would undercut the preservation of rights, essentially an anti-majoritarian process. 7 St. John's Journal of Legal Commentary 203 (1991). 2. I am much taken with Justice Douglas' idea that it takes 5 to 10 years for a new Justice to develop a good approach to making decisions because a Justice needs to put aside ideas and positions held before joining the Court and seek a perspective based on the Supreme Court's unique role. 3. I was impressed with the Supreme Court's handling of Brown v. Bd.of Ed. when it stressed the need for everyone to defer to the decisions of the Court. See Cooper v. Aaron. Today I find it unhelpful that so many people criticize the Court using the Court as a whipping boy in discussing cases such as Bush v. Gore, Citizens United and Shelby County (re Sec. 5 of the VRA). At some point confessional issues need to be put to rest by the Court. Otherwise our society may become unduly fractured by political disagreement. In an appropriate forum I can defend all three decisions. 4. I am concerned that the dissenters in affirmative action and voting rights cases do not see the changes that have taken place and refuse to admit that achieving a society not based on race may require change in the legal stances taken in the 1960s, 70s and 80s. 5. When I defend the actions of the Court to non-lawyers, I would like to argue that the Supreme Court does not decide cases based on personal political predilections, but takes a broader view based on the overall functioning of our political system and their best judgment of the good of the society as a whole. I find this hard to do in the light of many recent decisions. 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result. I was upset when he failed to enforce limits to the Commerce Clause in extending federal law to state authorization of the use of medical marijuana. Perhaps some day I will get to see why he did that and come to appreciate his view as I have his views in Smith. Jon On 2014-06-07 16:40, Volokh, Eugene wrote: Jon Mallamud writes: 4. Hobby Lobby represents to me an important test in how politically motivated the Court is becoming. In Boerne the Court held that in enforcing the fourteenth amendment, the Congress had to stick to the Supreme Court's interpretation of the constitution. In Employment Division v. Smith, Scalia interpreted the constitution for the Court and Congress tried to impose its own interpretation. If Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case, I would be concerned. Of course I am sure one could write a persuasive argument that Congress has full authority over statutes it enacts and Scalia could defer to the statute. I'm not sure why we should be concerned [i]f Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case. Congress has the power to carve out exemptions from federal laws (even if lacks such power to carve out exemptions from state laws, see Boerne). Smith simply holds that the _Free Exercise Clause_ doesn't provide such exemptions - it doesn't preclude statutory exemptions, no? By the way, if we should be concerned by Scalia's possible pro-Hobby-Lobby vote, I take it we should be equally concerned by Stevens' votes in Smith, Boerne, and O Centro, as well as by Ginsburg's votes in Boerne and O Centro (since her vote in Boerne suggests that she would have voted with the majority in Smith), no? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby/Ellen Katz
I appreciate the general concerns raised in Jon Mallamud's post -- but I just don't see how items 1 to 5 lead to the conclusion in item 6 about Hobby Lobby. Could you elaborate, please, why it would not be wis[e] for Justice Scalia to view RFRA as constitutional as to federal laws, and as justifying Hobby Lobby's claims in this case? The conclusion that the standard rejected in Smith is an unsound interpretation of the Free Exercise Clause doesn't obviously mean that Congress lacks the power to implement such a standard in a statute. Maybe that is ultimately the correct conclusion, but I think that it needs some more justification. Eugene Jon Mallamud writes: 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result. I was upset when he failed to enforce limits to the Commerce Clause in extending federal law to state authorization of the use of medical marijuana. Perhaps some day I will get to see why he did that and come to appreciate his view as I have his views in Smith. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby/Ellen Katz
People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again, an overwhelming majority, stemmed from liberals' dislike of Scalia. Clearly not suitable as a decisional factor, but it undermines the statute in my personal opinion.] Jon On 2014-06-08 12:24, Volokh, Eugene wrote: I appreciate the general concerns raised in Jon Mallamud's post -- but I just don't see how items 1 to 5 lead to the conclusion in item 6 about Hobby Lobby. Could you elaborate, please, why it would not be wis[e] for Justice Scalia to view RFRA as constitutional as to federal laws, and as justifying Hobby Lobby's claims in this case? The conclusion that the standard rejected in Smith is an unsound interpretation of the Free Exercise Clause doesn't obviously mean that Congress lacks the power to implement such a standard in a statute. Maybe that is ultimately the correct conclusion, but I think that it needs some more justification. Eugene Jon Mallamud writes: 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result. I was upset when he failed to enforce limits to the Commerce Clause in extending federal law to state authorization of the use of medical marijuana. Perhaps some day I will get to see why he did that and come to appreciate his view as I have his views in Smith. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hobby Lobby/Ellen Katz
I'm still not sure I understand. Let's say Justice Scalia thinks -- as seems quite plausible -- that the Free Exercise Clause is best interpreted as not securing religious exemptions. And let's say that he also thinks, as is also quite possible, that (1) there's no constitutional bar to Congress's providing by statute what the Free Exercise Clause does not itself provide, (2) it's not for secular courts to second-guess claimants' sincere claims that the law violates their religious beliefs, based on a judgment that those beliefs are based on too tenuous causal connections, and (3) the proposed exemption doesn't interfere with the rights and freedoms of others. I can't really see how it would be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Now of course if there's a sound substantive argument for why, for instance, RFRA is unconstitutional, then by hypothesis Justice Scalia should be persuaded by it. But what would that argument be? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 9:44 AM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again, an overwhelming majority, stemmed from liberals' dislike of Scalia. Clearly not suitable as a decisional factor, but it undermines the statute in my personal opinion.] Jon On 2014-06-08 12:24, Volokh, Eugene wrote: I appreciate the general concerns raised in Jon Mallamud's post -- but I just don't see how items 1 to 5 lead to the conclusion in item 6 about Hobby Lobby. Could you elaborate, please, why it would not be wis[e] for Justice Scalia to view RFRA as constitutional as to federal laws, and as justifying Hobby Lobby's claims in this case? The conclusion that the standard rejected in Smith is an unsound interpretation of the Free Exercise Clause doesn't obviously mean that Congress lacks the power to implement such a standard in a statute. Maybe that is ultimately the correct conclusion, but I think that it needs some more justification. Eugene Jon Mallamud writes: 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result. I was upset when he failed to enforce limits to the Commerce Clause in extending federal law to state authorization of the use of medical marijuana. Perhaps some day I will get to see why he did that and come to appreciate his view as I have his views in Smith. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi- bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get
RE: Hobby Lobby/Ellen Katz
Eugene, I agree that it would [not] be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive. I believe based on arguments Marci makes that RFRA is unconstitutional, but despite her brief, I do not think that that is at issue in Hobby Lobby. Jon On 2014-06-08 12:58, Volokh, Eugene wrote: I'm still not sure I understand. Let's say Justice Scalia thinks -- as seems quite plausible -- that the Free Exercise Clause is best interpreted as not securing religious exemptions. And let's say that he also thinks, as is also quite possible, that (1) there's no constitutional bar to Congress's providing by statute what the Free Exercise Clause does not itself provide, (2) it's not for secular courts to second-guess claimants' sincere claims that the law violates their religious beliefs, based on a judgment that those beliefs are based on too tenuous causal connections, and (3) the proposed exemption doesn't interfere with the rights and freedoms of others. I can't really see how it would be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Now of course if there's a sound substantive argument for why, for instance, RFRA is unconstitutional, then by hypothesis Justice Scalia should be persuaded by it. But what would that argument be? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 9:44 AM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again, an overwhelming majority, stemmed from liberals' dislike of Scalia. Clearly not suitable as a decisional factor, but it undermines the statute in my personal opinion.] Jon On 2014-06-08 12:24, Volokh, Eugene wrote: I appreciate the general concerns raised in Jon Mallamud's post -- but I just don't see how items 1 to 5 lead to the conclusion in item 6 about Hobby Lobby. Could you elaborate, please, why it would not be wis[e] for Justice Scalia to view RFRA as constitutional as to federal laws, and as justifying Hobby Lobby's claims in this case? The conclusion that the standard rejected in Smith is an unsound interpretation of the Free Exercise Clause doesn't obviously mean that Congress lacks the power to implement such a standard in a statute. Maybe that is ultimately the correct conclusion, but I think that it needs some more justification. Eugene Jon Mallamud writes: 6. I find that the reasons behind Employment Division v. Smith (which I have come to believe stated the best rule) apply to the evils of using the standard rejected in Smith in applying all federal statutes. So in Hobby Lobby I would like to see Justice Scalia find a way to apply his wisdom rather than his past predilection to enforce statutes no matter what the result
RE: Hobby Lobby/Ellen Katz
Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I regret ever more every day that Rehnquist did not assign the opinion to O'Connor, whose opinion at the time at detested because of what I thought was her lassitude on what counted as a compelling interest, but that is small beer indeed compared to the fact that had she been writing for the Court, the (perhaps fiction of) the compelling interest test would have been maintained even as it became ever more clear that compelling was not to be interpreted with inordinate strictness. Instead, it is possible that we will get, courtesy of Justice Scalia and four allies, a remarkably wooden and divisive interpretation of RFRA that will have at least some of the consequences that Jon predicts. Perhaps they will split the baby, a la Bakker, and decide, as I think is Doug's position, that Hobby Lobby is entitled to be heard on its claim, but that it fails becauses there is in fact what they will accept a! s a compelling interest' in favor of the contraception aspect of the mandate. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 2:29 PM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz Eugene, I agree that it would [not] be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive. I believe based on arguments Marci makes that RFRA is unconstitutional, but despite her brief, I do not think that that is at issue in Hobby Lobby. Jon On 2014-06-08 12:58, Volokh, Eugene wrote: I'm still not sure I understand. Let's say Justice Scalia thinks -- as seems quite plausible -- that the Free Exercise Clause is best interpreted as not securing religious exemptions. And let's say that he also thinks, as is also quite possible, that (1) there's no constitutional bar to Congress's providing by statute what the Free Exercise Clause does not itself provide, (2) it's not for secular courts to second-guess claimants' sincere claims that the law violates their religious beliefs, based on a judgment that those beliefs are based on too tenuous causal connections, and (3) the proposed exemption doesn't interfere with the rights and freedoms of others. I can't really see how it would be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Now of course if there's a sound substantive argument for why, for instance, RFRA is unconstitutional, then by hypothesis Justice Scalia should be persuaded by it. But what would that argument be? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 9:44 AM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again
RE: Hobby Lobby/Ellen Katz
Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more divisive than an interpretation against? And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's conflicting signals at oral argument, I suspect that if he has voted for Hobby Lobby--which I assume is necessary for Hobby Lobby to win--he might well be trying to craft his opinion narrowly. (Not that he always succeeds in making the confines of his opinions clear.) - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 3:37 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I regret ever more every day that Rehnquist did not assign the opinion to O'Connor, whose opinion at the time at detested because of what I thought was her lassitude on what counted as a compelling interest, but that is small beer indeed compared to the fact that had she been writing for the Court, the (perhaps fiction of) the compelling interest test would have been maintained even as it became ever more clear that compelling was not to be interpreted with inordinate strictness. Instead, it is possible that we will get, courtesy of Justice Scalia and four allies, a remarkably wooden and divisive interpretation of RFRA that will have at least some of the consequences that Jon predicts. Perhaps they will split the baby, a la Bakker, and decide, as I think is Doug's position, that Hobby Lobby is entitled to be heard on its claim, but that it fails becauses there is in fact what they will accept a! s a compelling interest' in favor of the contraception aspect of the mandate. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 2:29 PM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz Eugene, I agree that it would [not] be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive. I believe based on arguments Marci makes that RFRA is unconstitutional, but despite her brief, I do not think that that is at issue in Hobby Lobby. Jon On 2014-06-08 12:58, Volokh, Eugene wrote: I'm still not sure I understand. Let's say Justice Scalia thinks -- as seems quite plausible -- that the Free Exercise Clause is best interpreted as not securing religious exemptions. And let's say that he also thinks, as is also quite possible, that (1) there's no constitutional bar to Congress's providing by statute what the Free Exercise Clause does not itself provide, (2) it's not for secular courts to second-guess claimants' sincere claims that the law violates their religious beliefs, based on a judgment that those beliefs are based on too tenuous causal connections, and (3) the proposed exemption doesn't interfere with the rights and freedoms of others. I can't really see how it would be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Now of course if there's a sound substantive argument for why, for instance, RFRA
Re: Hobby Lobby/Ellen Katz
Protecting the civil liberties of all Americans used to be a liberal position. Now it's characterized as conservative if it includes free exercise of religion. More Orwellian yet is the idea that crushing free exercise is the way to let people of many different views live together in harmony. Forcing religious minorities to suffer for conscience was the path to the wars of religion, not a path to living together in harmony. On Sun, 08 Jun 2014 15:28:56 -0400 mallamud malla...@camden.rutgers.edu wrote: Eugene, I agree that it would [not] be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive. I believe based on arguments Marci makes that RFRA is unconstitutional, but despite her brief, I do not think that that is at issue in Hobby Lobby. Jon On 2014-06-08 12:58, Volokh, Eugene wrote: I'm still not sure I understand. Let's say Justice Scalia thinks -- as seems quite plausible -- that the Free Exercise Clause is best interpreted as not securing religious exemptions. And let's say that he also thinks, as is also quite possible, that (1) there's no constitutional bar to Congress's providing by statute what the Free Exercise Clause does not itself provide, (2) it's not for secular courts to second-guess claimants' sincere claims that the law violates their religious beliefs, based on a judgment that those beliefs are based on too tenuous causal connections, and (3) the proposed exemption doesn't interfere with the rights and freedoms of others. I can't really see how it would be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Now of course if there's a sound substantive argument for why, for instance, RFRA is unconstitutional, then by hypothesis Justice Scalia should be persuaded by it. But what would that argument be? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 9:44 AM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz People with whom I speak view Justice Scalia as a staunch conservative. They also associate deference to religion as a conservative position. If Scalia were to use what he obviously knows from his decision in Smith to deny religious exemptions based on tenuous connections where they interfere with the rights and freedoms of others, I think some people might take a more nuanced view of him. One small step in convincing people that the Supreme Court deserves respect because the Justices decide based on their best judgment of the good of the country and not on preconceived liberal or conservative biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming majority by which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for the enactment or RFRA, again, an overwhelming majority, stemmed from liberals' dislike of Scalia. Clearly not suitable as a decisional factor, but it undermines the statute in my personal opinion.] Jon On 2014-06-08 12:24, Volokh, Eugene wrote: I appreciate the general concerns raised in Jon Mallamud's post -- but I just don't see how items 1 to 5 lead to the conclusion in item 6 about Hobby Lobby. Could you elaborate, please, why it would not be wis[e] for Justice Scalia to view RFRA as constitutional as to federal laws, and as justifying Hobby Lobby's claims in this case? The conclusion that the standard rejected in Smith is an unsound interpretation of the Free Exercise Clause doesn't obviously mean that Congress lacks the power to implement
RE: Hobby Lobby/Ellen Katz
The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard as personally unattractive--I speak as someone who defended the right of the Ku Klux Klan to march down Congress Avenue in Austin). sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 4:18 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more divisive than an interpretation against? And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's conflicting signals at oral argument, I suspect that if he has voted for Hobby Lobby--which I assume is necessary for Hobby Lobby to win--he might well be trying to craft his opinion narrowly. (Not that he always succeeds in making the confines of his opinions clear.) - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 3:37 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I regret ever more every day that Rehnquist did not assign the opinion to O'Connor, whose opinion at the time at detested because of what I thought was her lassitude on what counted as a compelling interest, but that is small beer indeed compared to the fact that had she been writing for the Court, the (perhaps fiction of) the compelling interest test would have been maintained even as it became ever more clear that compelling was not to be interpreted with inordinate strictness. Instead, it is possible that we will get, courtesy of Justice Scalia and four allies, a remarkably wooden and divisive interpretation of RFRA that will have at least some of the consequences that Jon predicts. Perhaps they will split the baby, a la Bakker, and decide, as I think is Doug's position, that Hobby Lobby is entitled to be heard on its claim, but that it fails becauses there is in fact what they will accept a! s a compelling interest' in favor of the contraception aspect of the mandate. sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud Sent: Sunday, June 08, 2014 2:29 PM To: religionlaw@lists.ucla.edu Subject: RE: Hobby Lobby/Ellen Katz Eugene, I agree that it would [not] be proper for him to take a different approach because he wants people to take a more nuanced view of him or because he wants to convic[e] people that the Supreme Court deserves respect. Judges must make decisions based on their best judgment without regard to whether people would like them. It is for law professors, lawyers and others to evaluate decisions. I do think there is an obligation for legally trained people to defend as well as criticize the Supreme Court and I believe that given the partisanship that may tear our country apart, the time to do so is now. I also do not believe Justices must stick to the views they had before they were appointed. They need to reevaluate those views in the light of changed circumstances and the broader perspective from the view from the highest court. Thus, I just hope he sees the problem as he did in Smith and weighs that against a statute that, if interpreted broadly, would go against the policy of the free speech clauses: to let people of many different views to live together in harmony. The application of strict scrutiny to protect all religious views would be extremely disruptive
RE: Hobby Lobby/Ellen Katz
I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) On the substance, I too am not a fan of some Roberts Court rulings for employers (e.g. Ledbetter). But it seems to me there are possible rulings for Hobby Lobby that would not affect employees greatly--for example, the possibility, explored at oral argument, of extending to for-profit employers the same insurer-pays accommodation that now covers religious nonprofits. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 5:58 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard as personally unattractive--I speak as someone who defended the right of the Ku Klux Klan to march down Congress Avenue in Austin). sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 4:18 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more divisive than an interpretation against? And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's conflicting signals at oral argument, I suspect that if he has voted for Hobby Lobby--which I assume is necessary for Hobby Lobby to win--he might well be trying to craft his opinion narrowly. (Not that he always succeeds in making the confines of his opinions clear.) - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 3:37 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I regret ever more every day that Rehnquist did not assign the opinion to O'Connor, whose opinion at the time at detested because of what I thought was her lassitude on what counted as a compelling interest, but that is small beer indeed compared to the fact that had she been writing for the Court, the (perhaps fiction of) the compelling interest test would have been maintained even as it became ever more clear that compelling was not to be interpreted with inordinate strictness. Instead, it is possible that we will get, courtesy of Justice Scalia and four allies, a remarkably wooden and divisive interpretation of RFRA that will have at least some of the consequences that Jon predicts. Perhaps they will split the baby, a la Bakker, and decide, as I think is Doug's position, that Hobby Lobby is entitled to be heard on its claim, but that it fails becauses there is in fact what they will accept
RE: Hobby Lobby/Ellen Katz
I agree with Tom that divisiveness arguments are best shied away from. This was a favorite of Brennan in the school funding cases, and I never understood why those who supported funding on the basis that they could not otherwise enjoy their presumptive constitutional right to send their children to religious schools (Pierce) weren't as upset with the Court as, presumably, secularists would have been by knowing that their tax dollars were going to religious schools. The insurer pays accommodation depends, does it not, on the brute fact that contraception, when all is said and done, is less costly than pregnancy. What if it were more costly? sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 6:34 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) On the substance, I too am not a fan of some Roberts Court rulings for employers (e.g. Ledbetter). But it seems to me there are possible rulings for Hobby Lobby that would not affect employees greatly--for example, the possibility, explored at oral argument, of extending to for-profit employers the same insurer-pays accommodation that now covers religious nonprofits. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 5:58 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard as personally unattractive--I speak as someone who defended the right of the Ku Klux Klan to march down Congress Avenue in Austin). sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 4:18 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more divisive than an interpretation against? And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's conflicting signals at oral argument, I suspect that if he has voted for Hobby Lobby--which I assume is necessary for Hobby Lobby to win--he might well be trying to craft his opinion narrowly. (Not that he always succeeds in making the confines of his opinions clear.) - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 3:37 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Unlike Jon, I believe RFRA was constitutional, but, as I've posted
RE: Hobby Lobby/Ellen Katz
Yes, the insurer-pays accommodation depends on contraception being less costly on net. But since the administration has asserted that such is the case (in support of both the mandate itself and the accommodation), it seems to me the Court can and should proceed on that basis. If the facts start turning out noticeably different, that might affect the whole politics of the issue (who knows?). - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 6:39 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I agree with Tom that divisiveness arguments are best shied away from. This was a favorite of Brennan in the school funding cases, and I never understood why those who supported funding on the basis that they could not otherwise enjoy their presumptive constitutional right to send their children to religious schools (Pierce) weren't as upset with the Court as, presumably, secularists would have been by knowing that their tax dollars were going to religious schools. The insurer pays accommodation depends, does it not, on the brute fact that contraception, when all is said and done, is less costly than pregnancy. What if it were more costly? sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 6:34 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) On the substance, I too am not a fan of some Roberts Court rulings for employers (e.g. Ledbetter). But it seems to me there are possible rulings for Hobby Lobby that would not affect employees greatly--for example, the possibility, explored at oral argument, of extending to for-profit employers the same insurer-pays accommodation that now covers religious nonprofits. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 5:58 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard as personally unattractive--I speak as someone who defended the right of the Ku Klux Klan to march down Congress Avenue in Austin). sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 4:18 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more divisive than an interpretation against? And would any ruling
Re: Hobby Lobby/Ellen Katz
Thanks, Tom. Here is the link, if anyone is interested, to the paper (now about 8 years old!): http://papers.ssrn.com/sol3/papers.cfm?abstract_id=855104 It seems to me, for what it's worth, that a ruling for Hobby Lobby would not (or need not) be wooden, divisive, or conservative, even if we think (or some of us think) that it highlights or confirms what some us might think are problems with the RFRA approach. Best, Rick Sent from my iPhone On Jun 8, 2014, at 4:36 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) On the substance, I too am not a fan of some Roberts Court rulings for employers (e.g. Ledbetter). But it seems to me there are possible rulings for Hobby Lobby that would not affect employees greatly--for example, the possibility, explored at oral argument, of extending to for-profit employers the same insurer-pays accommodation that now covers religious nonprofits. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 5:58 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard as personally unattractive--I speak as someone who defended the right of the Ku Klux Klan to march down Congress Avenue in Austin). sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 4:18 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Sandy (and Jon. etc.)--Why is an interpretation of RFRA for Hobby Lobby more divisive than an interpretation against? And would any ruling for Hobby Lobby automatically be wooden? Given Kennedy's conflicting signals at oral argument, I suspect that if he has voted for Hobby Lobby--which I assume is necessary for Hobby Lobby to win--he might well be trying to craft his opinion narrowly. (Not that he always succeeds in making the confines of his opinions clear.) - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 3:37 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Unlike Jon, I believe RFRA was constitutional, but, as I've posted earlier, I regret ever more every day that Rehnquist did not assign the opinion to O'Connor, whose opinion at the time at detested because of what I thought was her lassitude on what counted as a compelling interest, but that is small beer indeed compared to the fact that had she been writing for the Court, the (perhaps
RE: Hobby Lobby/Ellen Katz
And, of course, the government could pick up the additional costs to the insurer. That would spread the costs of protecting religious liberty so that it would not fall exclusively (and heavily) on the employees of religiously exempt employers. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [tcb...@stthomas.edu] Sent: Sunday, June 08, 2014 5:34 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz Yes, the insurer-pays accommodation depends on contraception being less costly on net. But since the administration has asserted that such is the case (in support of both the mandate itself and the accommodation), it seems to me the Court can and should proceed on that basis. If the facts start turning out noticeably different, that might affect the whole politics of the issue (who knows?). - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 6:39 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I agree with Tom that divisiveness arguments are best shied away from. This was a favorite of Brennan in the school funding cases, and I never understood why those who supported funding on the basis that they could not otherwise enjoy their presumptive constitutional right to send their children to religious schools (Pierce) weren't as upset with the Court as, presumably, secularists would have been by knowing that their tax dollars were going to religious schools. The insurer pays accommodation depends, does it not, on the brute fact that contraception, when all is said and done, is less costly than pregnancy. What if it were more costly? sandy -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Sunday, June 08, 2014 6:34 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz I get those arguments, but they don't really seem to rest on a ruling for Hobby Lobby being divisive--they rest on it being (assertedly) substantively wrong. One could just as easily charge the Obama administration with being divisive (undermining harmony, to use Jon's term) by adopting the mandate in the first place. (See Rick Garnett's piece on why arguments about divisiveness should do only very limited work in religion cases.) On the substance, I too am not a fan of some Roberts Court rulings for employers (e.g. Ledbetter). But it seems to me there are possible rulings for Hobby Lobby that would not affect employees greatly--for example, the possibility, explored at oral argument, of extending to for-profit employers the same insurer-pays accommodation that now covers religious nonprofits. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Levinson, Sanford V [slevin...@law.utexas.edu] Sent: Sunday, June 08, 2014 5:58 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby/Ellen Katz The answer to Tom's question is not only that it creates an incentive for strategic misrepresentations (which I don't regard as dispositive, because that arises in all religious exemption claims, including conscientious objection), but also, and far more seriously, that it would be yet one more grant by this ultra conservative Court of power to management at the cost of their employees (who are increasingly viewed by this Court as having only such rights as management chooses to respect). I'm quite willing to support the right of the isolated baker or florist to refuse to bake a wedding cake or supply flowers because that has very few externalities (other, of course, than the stigma visited on the same sex would-be customers, but I agree with Doug that that is the price we pay for recognizing the rights of people we might regard
RE: Hobby Lobby/Ellen Katz
Jon Mallamud writes: 4. Hobby Lobby represents to me an important test in how politically motivated the Court is becoming. In Boerne the Court held that in enforcing the fourteenth amendment, the Congress had to stick to the Supreme Court's interpretation of the constitution. In Employment Division v. Smith, Scalia interpreted the constitution for the Court and Congress tried to impose its own interpretation. If Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case, I would be concerned. Of course I am sure one could write a persuasive argument that Congress has full authority over statutes it enacts and Scalia could defer to the statute. I'm not sure why we should be concerned [i]f Scalia decides that a statute purporting to deal with all federal law just as the constitution does, and thus uses the rule of decision in RFRA to decide a religious exemption case. Congress has the power to carve out exemptions from federal laws (even if lacks such power to carve out exemptions from state laws, see Boerne). Smith simply holds that the Free Exercise Clause doesn't provide such exemptions - it doesn't preclude statutory exemptions, no? By the way, if we should be concerned by Scalia's possible pro-Hobby-Lobby vote, I take it we should be equally concerned by Stevens' votes in Smith, Boerne, and O Centro, as well as by Ginsburg's votes in Boerne and O Centro (since her vote in Boerne suggests that she would have voted with the majority in Smith), no? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
