RFRA, the Establishment Clause, and saving constructions

I appreciate Jim's argument, and also the arguments that the problem with the exemption isn't discrimination in favor of religion, but rather the burden on third parties, regardless of whether the exemption is only for the religious. (I hope to respond to those arguments soon.)

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

The adjective must do some work. For one state case so holding, see Warner v. City of Boca Raton, 807 So. 2d 1023, 1033-1034 (Fla. 2004): Accordingly, we conclude that the narrow definition of substantial burden adopted by the Fourth, Ninth, and Eleventh Circuits is most consistent with

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

Doh! Mark is right of course, about subtracting one from the denominator instead of adding one to the numerator. Conscientious objectors presumably had the same distribution of birthdays as the population, so the number of COs ahead of Mark and behind Mark (or anyone else in the pool) should be

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

I think it's actually the denominator that changes. If there is a need to draft 20 men, and there are 100 eligible to draft, then the chance of being drafted is 20% (20 divided by 100). If one of the 100 is granted conscientious objection status, then there are only 99 eligible men. The chances

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

Micah, I guess the question for me is whether the fact that the government has not offered to provide coverage to the employees of exempt organizations constrains permissive accommodations under a statute like RFRA. If the provision of coverage to the employees of exempt organizations is a less

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

But there were also exemptions for graduate students in all fields of health sciences (medicine, dentistry, optometry, etc.). So the divinity student exemption is more like the property tax exemption upheld in Walz -- it is part of a larger set of exemptions in which many/most are secular (and the

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

I know from personal experience. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Saperstein, David Sent: Monday, December 02, 2013 4:19 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: The Est

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

And you'll be relieved to know that it was only a coincidence that seminary applications sky-rocketed beginning around 67. Sent from my iPhone On Dec 2, 2013, at 4:04 PM, "Marc Stern" mailto:ste...@ajc.org>> wrote: There was also an exemption for divinity students. From: religionlaw-boun...@

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

Of course, it is also possible I am wrong. On Mon, Dec 2, 2013 at 2:00 PM, Douglas Laycock wrote: > Of course it’s possible I am wrong. > > > > When they went to the lottery in 1969, that was certainly understood to be > national – but I suppose the actual selections could have been by state. >

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

There was also an exemption for divinity students. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, December 02, 2013 4:01 PM To: 'Law & Religion issues for Law Academics' Subject: RE: The Establishment Clause, burden

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

Of course it's possible I am wrong. When they went to the lottery in 1969, that was certainly understood to be national - but I suppose the actual selections could have been by state. Before that, they were supposed to be taking the oldest men first (up through age 26, at which point you aged

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

The Court did not, of course, reach the merits in *Imus*, but people thought there was a disparate impact. On Mon, Dec 2, 2013 at 1:50 PM, Michael Worley wrote: > oops, that should read over n+1 instead of n. > > > On Mon, Dec 2, 2013 at 1:45 PM, Michael Worley wrote: > >> Some at the time of

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

oops, that should read over n+1 instead of n. On Mon, Dec 2, 2013 at 1:45 PM, Michael Worley wrote: > Some at the time of Vietnam thought otherwise: > > In *Imus v. United States* 447 F.2d 1008 (10th Cir. 1971), drafted Utahns > where LDS Missionaries got an exemption claimed "The appellees ass

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

Some at the time of Vietnam thought otherwise: In *Imus v. United States* 447 F.2d 1008 (10th Cir. 1971), drafted Utahns where LDS Missionaries got an exemption claimed "The appellees assert in effect that the classification of the missionaries as ministers during the period of their service serve

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Fair enough. > On Dec 2, 2013, at 2:10 PM, "Marci Hamilton" wrote: > > Absolutely. They all have lobbyists. I don't view the term as necessarily > perjorative. Just descriptive. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University >

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

Alan, I think you're right that the problem of burdening non-beneficiary employees could be resolved by the government providing them with full coverage (as I think Nelson Tebbe said in an earlier post). But until that happens, those employees have a claim in this litigation that hasn't yet be

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

The draft pool was effectively local, as you envision it, through the Civil War. Each county was given a quota to fill. I think it was nationalized for World War I, but I don't really know. It was certainly nationalized by the time of Vietnam. Local boards administered the classification system

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Absolutely. They all have lobbyists. I don't view the term as necessarily perjorative. Just descriptive. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 2, 2013, at 2:10 PM, Paul Horwitz wrote: > I'm curious about

RE: The Establishment Clause, burden on others, the employer mandate, and the draft

Micah, if the issue is diffusing the burden so that it doesn't fall on a limited class of identifiable individuals, why isn't that problem solved by the government taking over the task of providing insurance coverage for the employees of exempt organizations. Isn't the government a sufficiently

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

What they had was the reality of politics and the forces arrayed against them. As one said to me, if it doesn't make a difference why try for a constitutional amendment to delete it and fix it permanently? In federal court, substantial burden has been a difficult hurdle for claimants. Marci

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

It has certainly made a difference in RLUIPA cases. I have to say I find it a little hard to believe these cases can be generalized across states given how few there are and how different each state operates procedurally, but I look forward to reading your article and will keep an open mind.

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

I'm curious about how this response relates to your response to Chris Lund, in which you cited the Madisonian assumption that every group will seek the maximum amount of power. It reminded me of this profile of Valerie Jarrett: http://www.nytimes.com/2012/09/02/us/politics/valerie-jarrett-is-the

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Sure, but what evidence did they have? That is, what evidence did they have that any of the differences in phrasing--"burden," "substantial burden," or "restriction on religious liberty,"--would matter in deciding cases? Again I may be wrong about this and I really would like to be corrected if

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

The Texas municipal league and civil rights groups -- especially those protecting children's and women's and gay rights -- would disagree w the notion "substantial" is irrelevant. And the TX legislature had no interest, or so I am told by those groups on the ground in Texas. I don't want the

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

> Again I have not seen any evidence that differences in phrasing--"burden," > "substantial burden," "restriction on religious liberty,"--have caused any > differences in result (or even reasoning). If you have examples, I'd love to > know about them. If not, it suggests the differences in ph

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

Maybe I misunderstand how the draft worked (I am quite young), but it would seem to me that a local draft board would not be much bigger than an insurance plan in size (indeed, for Hobby Lobby, the draft board would seem smaller), and thus, Gedicks' and Van Tassel's claim that "a person’s decision

RE: Response to Tom Berg (and others)

Taking a broader view, I believe that the first amendment religion clauses, first and foremost, are there to minimize disharmony in the society that results form government supported religion and the denial of one's ability to practice one's religion. To that end, I think that Employment Divis

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Chris-- As I mentioned, CT's has been amended through interpretation You are right about Alabama. I actually think these terms matter and removal of substantial violates the Establishment Clause but it also shows the endless push by religious entities to overcome all laws. I assume the

RE: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Thanks. A more informed version of what I said in the second letter to the TX legislature. 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

RE: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without "substantial;" I also suggested that the committee restore "substantial" i

The Establishment Clause, burden on others, the employer mandate, and the draft

Eugene's suggestion that the religious exemption from the contraception mandate be analogized to the draft protester cases is anticipated by Gedicks and Van Tassell in their article, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion (http://papers.ss

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

Eugene: 1. I strongly suggest that you read the Gedicks and Van Tassell article, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, for a fully developed answer to your questions. 2. Your po

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Connecticut and Alabama use "burden" instead of "substantial burden."  New Mexico, Missouri, and Rhode Island don't use the burden terminology--they speak of "restrictions on religious liberty."  To me, that would seem like it jettisons the requirement of burden altogether, but others may disag

RE: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

What I said is in the second letter (link below) and summarized in the e-mail to which you responded. We supported the bill as drafted, without "substantial;" I also suggested that the committee restore "substantial" if it were bothered by the omission. I think most of my co-signers would have agre

Contraceptives objected to by claimants in contraception mandate claims

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

Re: The Establishment Clause, burden on others, the employer mandate, and the draft

Eugene -- One question about this passage from your message: "I take it that RFRA could likewise be interpreted to apply to philosophical conscientious beliefs." Could such an interpretation of RFRA be squared with its stated purpose of restoring the protection of free exercise as set forth in Yo

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

The WIs bill was never passed to my knowledge, but if it went through under the radar, I would be interested. Conn did not include the term in one of the earliest bills, but the Conn Supreme Court read it in. To my knowledge, only KY passed such a bill, and only over the Governor's veto. Mar

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Just FY (forgive me if I missed an earlier reference)I believe there is such a bill in Wisconsin as well ? Sent from my iPhone On Dec 2, 2013, at 10:18 AM, "hamilto...@aol.com" mailto:hamilto...@aol.com>> wrote: Thanks, Doug. The letter in support of the new TRF

Re: Letter of 16 law professors in support of removing "substantial" as modifier of "burden" in state RFRAs

Thanks, Doug. The letter in support of the new TRFRA amendment bill, which would have omitted "substantial" as a modifier, does not mention the removal of "substantial," but is in support of the bill. If there is anyone who signed it who opposes removal of "substantial," please let me know