As I understand the process, Doug reassured folks on the left that RLPA as applied to land use law would not apply to the civil rights laws, particularly the fair housing laws. Not sure how to square that w Doug's current statements.
I also find the in pari materia argument disingenuous at best. When RFRA was being enacted, the Coalition had agreed amongst themselves not to disclose individual agendas. And none of the very few examples used to support RFRA had anything remotely to do w for-profit companies. As I say in my Justia.com column on the Hobby Lobby decision, had the members been informed that RFRA would open doors for Wal-Mart to get around laws, RFRA would have taken a very different path. Despite being deeply involved in RFRA via Boerne, and educated by the many organizations that contacted me, I only learned that the CLS was intent on overcoming the fair housing laws when a memo re the CA state RFRA was inadvertently shared w me. Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life position, but was reassured RFRA would not affect the abortion issue. All of these elements need to be explained to make the argument that RFRA was intended to apply to for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 2:35 PM, James Oleske <jole...@lclark.edu> wrote: > A few comments and one question upon an initial read of Professor Laycock and > Professor Dane's pieces. > > First, with respect to Professor Laycock's piece, I think it is difficult to > overstate the importance of one of the nation's most prominent and respected > advocates for a broad conception of religious liberty penning the following > words: > > "These Final Rules offer a serious plan to protect religious liberty without > depriving women of contraception.... These Final Rules are utterly > inconsistent with the common charge that the Obama Administration is engaged > in a 'war on religion.'" > > Professor Laycock's piece does not spare the political left from similar > rebukes -- indeed, groups on the political left come in for more extensive > criticism in the "Growing Hostility" section of the piece than groups on the > political right. But Professor Laycock has previously offered strong > criticism of rhetoric on the left about religious issues. What is most > striking to me about about this piece is that it flatly rejects the central > talking point of some of those on the right who have relied most heavily on > Professor Laycock's scholarship about religious exemptions. > > Like Professor Laycock's piece, Professor Dane's piece finds fault with > overheated claims on both sides of the debate, but I'm most interested in the > doctrinal analysis Professor Dane offers in place of the heat. In particular, > on the issue of exemptions for for-profit institutions, Professor Dane's > analysis begins with a line that, while not explicitly discussing the case, > seems to track the approach of the Court in United States v. Lee: > > "I do think that the for-profit status of some religious objectors might be > relevant, but at the back end – in the analysis of compelling interest – > rather than the front end determination of substantial burden." > > Professor Dane then notes that arguments can be made for and against making > distinctions between small and large businesses in determining the > government's interest in denying exemptions (I would only add that the denial > of an exemption to a very small employer in Lee may be relevant to further > exploration of these arguments). Professor Dane concludes his analysis by > stating that a "vital proposition in the conception of religious liberty" is > that "believers have at least a presumptive right to live out the commitments > of their faith across the whole range of human activity, including the world > of business and commerce." > > It is this last point that I think would benefit most from being expanded to > account for the doctrinal significance of Lee, where the Court identified a > competing presumption that comes into play in for-profit cases due to impact > on third parties: > > "When followers of a particular sect enter into commercial activity as a > matter of choice, the limits they accept on their own conduct as a matter of > conscience and faith are not to be superimposed on the statutory schemes > which are binding on others in that activity. Granting an exemption from > social security taxes to an employer operates to impose the employer's > religious faith on the employees." > > I've previously criticized the Tenth Circuit majority in Hobby Lobby for > failing to address this language from Lee. Since then, the Third Circuit > majority in Conestoga Wood -- while coming to the opposite conclusion of the > Tenth Circuit -- has likewise neglected to engage the relevant language from > Lee (the dissents in both cases do at least quote the language, but neither > provides a satisfying discussion of its relevance). Admittedly, the result in > Lee is arguably in some tension with language in O'Centro, which itself is > arguably in some tension with language in Cutter, but if we're going to get > out of this doctrinal thicket, it seems to me that courts and commentators > are going to have to carefully work through and (if possible) reconcile the > language and results in all three of those cases. > > One final question for Professor Laycock: In footnote 67 of your piece, you > point to the legislative history of RLPA as evidence that RFRA covers > for-profits, writing: > > "Both sides in that debate believed that if enacted, RLPA would protect > for-profit businesses from civil rights claims that substantially burdened > the owner’s free exercise of religion. RLPA was in pari materia with RFRA, > and its operative language was identical to the language of RFRA. The > supporters of a civil-rights exception to RLPA were seeking an amendment that > they knew they needed, and that had not been part of RFRA." > > Did none of the supporters of RLPA try to reassure the civil rights community > that they did not need an exception because the Supreme Court's pre-Smith > jurisprudence that was being restored had already imposed limitations on > exemptions in the commercial arena? I haven't studied the legislative history > of RLPA, but I would have expected that argument to have been made (along > with the argument that the Court's pre-Smith jurisprudence already found that > preventing certain types of discrimination is a compelling state interest > that can trump religious exemption claims). > > Best, > > Jim > > On Thu, Aug 1, 2013 at 7:53 AM, Douglas Laycock <dlayc...@virginia.edu> wrote: > >> By coincidence, I just posted a related piece, broader than Perry’s in some >> ways, narrower in others: >> >> >> http://papers.ssrn.com/abstract=2304427 >> >> >> The piece is framed in terms of the larger culture wars, and does not offer >> a full doctrinal analysis of the contraception litigation. But buried in the >> middle is a fairly detailed analysis of the recently published Final Rules >> on the contraception mandate, which also “tries to speak sanely.” >> > > *** > >> From: religionlaw-boun...@lists.ucla.edu >> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane >> Sent: Thursday, August 01, 2013 10:27 AM >> To: religionlaw@lists.ucla.edu >> Subject: Contraception mandate >> >> >> >> Hi all, >> >> I've posted a short essay -- half of a projected exchanged -- that tries to >> speak sanely about the contraceptive mandate debate. The piece offers a >> doctrinal analysis, but also explores how the debate -- and in particular >> the overblown claims by both sides -- "suggest some imperfectly articulated >> undercurrents in the current American conversation about religion and the >> law." See http://ssrn.com/abstract=2296635 >> >> Comments would, of course, be welcome. >> >> Perry >> > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are posted; > people can read the Web archives; and list members can (rightly or wrongly) > forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
