Which HHS accommodation? The first -- exempting churches altogether -- in
theory does not impose as much of a burden on their employees, because
those entities already have a right (under title VII) to prefer
coreligionists and insist that they comply with religious obligations --
that is to say, the employees there voluntarily took the jobs knowing
(probably intending) that they would have to abide by church tenets.
The second HHS accommodation, for other religious nonprofits, does not harm
the female employees, because they continue to receive cost-free
contraceptive coverage, albeit from the insurer rather than from the
employer.
On Tue, Dec 3, 2013 at 6:30 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote:
> I sympathize with the argument that there is a compelling
> government interest in preventing costs on third parties, and that this may
> justify rejecting the RFRA claim. I think the doctrine here is especially
> uncertain, but there’s much to be said for that argument as a reason for
> rejecting Hobby Lobby’s claim.
>
>
>
> But the Establishment Clause argument would go further.
> Among other things, it would mean that the Administration’s accommodation
> for religious nonprofits is itself unconstitutional. (As I read Gedicks &
> Van Tassell, that is indeed their position.) Do list members who embrace
> the Establishment Clause argument agree with that result?
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman
> *Sent:* Tuesday, December 03, 2013 8:40 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: RFRA, the Establishment Clause, and saving constructions
>
>
>
> Eugene writes: "Even in the face of this caselaw, and the argument that
> such preference for religion makes the statute unconstitutional, the Court
> can’t read RFRA the same way [as courts have read the title VII and
> conscientious objector statutes], but is instead compelled to read it in a
> way that makes it unconstitutional?"
>
> No, the argument is not that the preference for religion makes it
> unconstitutional -- Cutter already rejected that argument -- but that if
> RFRA were construed to allow religious accommodations *that imposed
> significant burdens on third parties*, that would raise a serious
> constitutional question. Eugene, you're right that *expanding* RFRA to
> include nonreligious objections would eliminate that particular
> constitutional concern -- ironically, by expanding the harm to third
> parties. But for the reasons Chip has offered -- plus the glaring point
> that the one thing everyone agrees on is that RFRA was intended to codify
> the FEC "doctrine" of the Sherbert-through-Hernandez quarter-century, a
> doctrine that did not recognize nonreligious claims for exemption -- that
> reading of RFRA is fairly untenable (in contrast to the conscientious
> objector and title VII accommodations) . . . and would, indeed, only
> exacerbate the employee-burden problems.
>
> The much, much more natural way to avoid the third-party burden
> constitutional concerns is simply to construe RFRA to provide that avoiding
> significant third-party harms is a compelling government interest, under
> the terms of RFRA itself. Indeed, doubly compelling -- the government has
> an interest both "on the merits" in not denying this particular category of
> women a social benefit to which virtually all other women are entitled, *and
> *in avoiding serious EC concerns.
>
>
>
> On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
> So I take it the EEOC and the great majority of courts
> that have considered the meaning of “religion” in Title VII are wrong,
> too? Here are the citations I had when I last researched the matter in
> 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir.
> 1986) ("The breadth of the 'exemption' afforded by Title VII is underscored
> by the fact that in defining religion, the EEOC has used the same broad
> definition as the Selective Service employs for conscientious objector
> purposes."); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th
> Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574
> F.2d 897, 901 n.12 (7th Cir. 1978) ("We believe the proper test to be
> applied to the determination of what is 'religious' under § 2000e(j) can be
> derived from the Supreme Court decisions in [Welsh] and [United States v.
> Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which
> protection is sought 'religious' in person's own scheme of things, and (2)
> is it 'sincerely held.'"); Ali v. Southeast Neighborhood House, 519 F.
> Supp. 489, 490 (D.D.C. 1981) ("Sincere beliefs, meaningful to the believer,
> need not be confined in either source or content to traditional or
> parochial concepts of religion. [Welsh.] See also [Seeger] for the
> definition of 'religious training and belief' as applied to a conscientious
> objector claim, which definition is no less appropriate here."); Wondzell
> v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) ("In
> order to avoid the danger of unconstitutionality we would interpret [the
> state statute] to accord the same privileges to all sincere conscientious
> beliefs, whether or not they are accompanied by a belief in a supreme
> being."); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997).
>
>
>
> Even in the face of this caselaw, and the argument that such preference
> for religion makes the statute unconstitutional, the Court can’t read RFRA
> the same way, but is instead compelled to read it in a way that makes it
> unconstitutional?
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton
> *Sent:* Tuesday, December 03, 2013 8:14 AM
>
>
> *To:* Law & Religion issues for Law Academics
>
> *Cc:* Law & Religion issues for Law Academics
>
>
> *Subject:* Re: RFRA, the Establishment Clause, and saving constructions
>
>
>
> Chip has cut to the chase (thank you)
>
>
>
> i would add that Eugene's reasoning further underscores how RFRA is in
> fact a non-ratified amendment to the First Amendment, as the Court pointed
> out in a footnote in Boerne. Advocates for it like Eugene cannot build in
> all the rules they like by borrowing from Supreme Court First Amendment
> doctrine but then say it is "just a statute." As a statute, the plain
> language rule, the very title and the use of "free exercise" and the
> reference to religious cases means, yes, legislators are constrained to
> apply it only to religious believers. If its application to only the
> religious makes it a violation of the Establishment Clause, we have a
> constitutional violation.
>
>
> Marci A. Hamilton
>
> Verkuil Chair in Public Law
>
> Benjamin N. Cardozo Law School
>
> Yeshiva University
>
> @Marci_Hamilton
>
>
>
>
>
>
> On Dec 3, 2013, at 11:03 AM, Ira Lupu <icl...@law.gwu.edu> wrote:
>
> I'm happy to let others answer the question of why Eugene's FRA would be
> crazy (and profoundly contrary to the statute Congress enacted in 1993).
> If Eugene is not persuaded, so be it.
>
>
>
> On Tue, Dec 3, 2013 at 10:57 AM, Volokh, Eugene <vol...@law.ucla.edu>
> wrote:
>
> Why is it so crazy? If, for instance, religious objectors
> to abortion get exemptions from having to participate in abortion,
> conscientious secular philosophical objectors would get such exemptions,
> too. That seems fair, and is indeed the rule both under various
> abortion-specific conscience clauses and, as I noted, as to Title VII --
> which is narrower than RFRA in some ways, but broader in another very
> important way (since it applies to private employers). Nor has the
> interpretation of Title VII to which I point been seen by courts as
> removing the “religious” from “religious accommodation”; it just follows
> cases such as Welsh in treating deeply held conscientious philosophical
> beliefs similar to religious beliefs, something that would often have to be
> done in any event given the large variety of religious views, including
> nontheistic ones.
>
>
>
> As to “crackpot philosoph[ies],” “crackpot” religious
> objections -- including idiosyncratic ones -- are already covered under
> RFRA. Moreover, since the great majority of Americans consists of
> religious believers, most philosophical objections can be tied by at least
> some of the objectors to their religious beliefs, especially since all that
> is required is sincerity of belief and not the sharing of the belief by a
> larger group. Yet RFRA has not been terribly burdensome for the
> government, as best I can tell. Why would allowing similarly crackpot (or
> noncrackpot) secular philosophical objections to be covered suddenly cause
> much bigger problems?
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Tuesday, December 03, 2013 7:45 AM
>
>
> *To:* Law & Religion issues for Law Academics
>
> *Subject:* Re: RFRA, the Establishment Clause, and saving constructions
>
>
>
> The reason not to construe RFRA to apply to all secular philosophical
> objectors is that it's just plain crazy as a matter of policy. RFRA (which
> we would have to rename FRA after such a construction) applies to all of
> federal law. So this construction would give the holder of every crackpot
> philosophy about the limited role of government the legal leverage of
> requiring strict scrutiny as to why he or she should not be exempted from
> the reach of federal law. (Title VII is only about the employment
> relation, and the duty of accommodation is limited to de minimis burdens on
> employers. RFRA, or your FRA, would extend to everything.) So if
> construction to avoid constitutional doubt is what we are looking for, the
> only sensible move is to keep the "R" -- that is what Congress was doing in
> 1993 -- and to construe RFRA so as to avoid significant third party harms
> (in this case, to employees).
>
>
> _______________________________________________
> 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.
