I have not gone back to review all the RLPA testimony, but yes we did
predict that large commercial businesses seeking religious exemptions from
civil rights laws would generally lose.
The context of that testimony was civil rights claims. And it was a
prediction of what the courts would do in fact, not a judgment about what
they should do. But I would probably be comfortable with most of the results
we predicted.
The kinds of civil rights claims RLPA's supporters wanted to preserve mostly
did not arise in business situations. Religious discrimination by religious
organizations setting their criteria for membership, as in CLS v. Martinez,
is rarely a legitimate business interest. Sex and marital-status
discrimination in the ordination of a celibate male clergy is not a business
interest.
The existing examples at the time were the landlord-tenant cases, all of
which involved small landlords. People could envision issues with kosher
butchers and Christian bookstores, and with the broad reach of some state
civil rights laws. Some state laws prohibit discrimination on the basis of
"any lawful off-the-job activity." Think the church secretary moonlighting
in an abortion clinic, or a strip club, or any other business that is lawful
but disreputable in the view of some.
Same-sex marriage was on the far horizon; I don't recall anyone thinking
about wedding photographers and the like.
I believed that as the business grows, it becomes less plausible to view it
as a personal extension of the owner. Mrs. Smith with two duplexes may feel
morally responsible for every unit, and she may be doing all the work of
leasing and maintenance herself. A landlord with multiple apartment
complexes is less likely to feel that moral responsibility, and less likely
to persuade a court that he does. He certainly does not have to become
personally involved with what he considers the immoral use of his property
by particular tenants. And as the business grows, the government's interest
grows.
I did not envision at the time, and I don't know that anyone else did, a
case like Hobby Lobby. Here the business is large, but it is closely held by
devoutly religious and religiously unanimous owners. The government is
demanding a decision that must be made at the level of senior management for
the entire corporation; in 1998 and 99, people were thinking about issues
posed by one customer somewhere, to be dealt with by a rank-and-file
employee where it arose. And the owners and senior management understand the
decision the government wants to be profoundly evil - to require that they
cause their corporation to pay for, contract for, arrange for, and provide
to their employees and present as normal the option of killing innocent
human beings. That's not my view of emergency contraception and IUDs, but it
is theirs.
I would not want a decision in Hobby Lobby limited to those facts, and I'm
not sure where I would draw the line. But no one in 1998 and 1999 was
thinking about, or predicting judicial reaction to, a case like this.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, February 19, 2014 10:33 PM
To: Law & Religion issues for Law Academics
Subject: recommended Hobby Lobby posts
I have some further posts up on Balkinization. More importantly, both Chip
Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the
SCOTUSblog symposium, which I commend to all of you:
Chip/Bob:
http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-c
onstructions/
Doug:
http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-
corporations-are-covered/
I have questions/reactions to a couple of things in Doug's post:
First, Doug argues that many or all members of Congress during the RLPA
debate assumed that the bill, which at the time was similar (but not
identical) to RFRA, would at least allow for-profit corporations or their
directors/owners to bring claims. But as I recall, Doug and others also
reassured members of Congress, in public testimony, that large for-profit
companies would always or almost always lose under RLPA. Doug, do you think
this is one of the rare or exceptional cases where the large for-profit
plaintiffs should win, and, if so, why is this the outlier?
Second, Doug writes that "If these plaintiffs will not pay for what they
believe to be such an extraordinary wrong, then in the government's view,
they are barred from owning any business with more than fifty employees."
But it is simply not true that the consequence of excluding contraception
from the plan would be that the plaintiffs are "barred from owning any
business with more than fifty employees." Even if the company had fewer
than 50 employees, its plan would still have to include contraception. If
any employer, with fewer or more than fifty employees, does not wish to
include all required services in an employee benefit plan, it has two
choices: either be subject to prohibitive payments (in effect fines) or get
rid of their employee plan (in which case most of their employees would be
eligible for a subsidized plan on an exchange). A more accurate way of
stating the law would be: "If these plaintiffs, or any other employers, do
not include coverage in their companies' plans for what they believe to be
such an extraordinary wrong, then they will have little choice but to drop
their plans."
Also, another small thing related to that sentence: The individual
plaintiffs, at least in Hobby Lobby, would not "pay for" contraception --
indeed, they are not even shareholders -- and their brief makes it clear, I
think, that payment is not the gravamen of their complaint. See
http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html
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