I have a short essay coming out next month that offers a considerably different take than Doug on both the legislative history of RLPA and the text of the 1999 version of RLPA as compared to RFRA. A draft of the essay is available here:
Obamacare, RFRA, and the Perils of Legislative History http://ssrn.com/abstract=2398763 The relevant discussion can be found on pages 5-10 of the draft. My bottom-line conclusion is that "the 1998 and 1999 debates over RLPA fall far short of demonstrating an 'undisputed public understanding that the language in RFRA protected for-profit corporations and their owners.'" On the specific claim that the text of RFRA and RLPA were identical, I make the same point I see Marty has made in his separate response to Doug -- the 1999 RLPA has a "broad construction" provision that was in neither the 1998 RLPA or RFRA. Thus, the more relevant RLPA legislative history is the 1998 debate, not the 1999 debate Doug relies upon in the CLS amicus brief and his SCOTUS Blog post. And the 1998 testimony casts considerable doubt on the claim that large for-profit businesses are protected by RFRA. On a different note, I want to second Marty's recommendation of the symposium over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip and Bob's piece, which makes an important argument calling for symmetry between the treatment of employee accommodations under Title VII and employer accommodations under RFRA (in both cases this avoids establishment concerns raised by exemptions that impose more than de minimis burdens on others). Chip and Bob's piece is available here: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ - Jim On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock <dlayc...@virginia.edu>wrote: > 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-constructions/ > > 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 > > > > _______________________________________________ > 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.
