The Supreme Court tried to step out of the interest-balancing business in *Smith*, in part because it was terrible at it. We should let it get out of that business to the extent possible. As a religious person myself, I don't like it when the court decides how substantial a burden something is on my religious practices. How could the courts possibly assess that?
I'd feel differently if I thought that religious groups were incapable of protecting their interests in the political arena. But that's hardly the case (before or after *Smith*). Religious rights groups have proven themselves quite capable of participating in the political economy just like every other lobbying group. But the nature of the political economy is that you win some and you lose some. And when it comes to balancing the interests in prohibiting discrimination and in women's health issues vs. religious liberty, I think the legislatures are at least as well situated to battle it out on those specific issues than the courts are. To illustrate: it strikes me that one of the reasons that we have a contraception mandate in the first place is that republicans basically decided not to participate in the crafting of health care reform, leaving it to democrats to cobble together the most left-leaning health care reform act they could pass at the time. That's a political choice, and they are entitled to it; surely had they succeeded in blocking passage altogether, it would look wise (from their perspective) in retrospect. But I suspect that had they opted instead to participate in the drafting, they could have slipped in some language that would have prevented the agency from imposing the mandate as part of some kind of bargain. I think Mark Scarberry is correct that these cases present a new sort of issue because they apparently pose a challenge to Catholic and evangelical Christian beliefs, who represent a huge swath of the population (unlike peyotists, orthodox jews, amish, santeriaists, and so on). That's all the more reason to believe that the political system ought to be able to sort this out. We aren't talking about insular minority groups, after all. Let the 2014 and 2016 elections be a referendum on the contraception mandate, in part. Let religious interest groups use this issue to get out their vote, just like those who advocate for anti-discrimination laws and contraception coverage can use it to get out theirs. That's a better idea than asking nine (very smart, but hardly apolitical) lawyers to fight it out. Further, I'm not moved by the argument that the logic for the contraception mandate could apply just as well to abortion. Under the Court's logic in *Sebelius*, Congress could impose a broccoli mandate (with a tax penalty) if it chose to, but it isn't going to because people aren't interested in a broccoli mandate. Congress can do all kinds of stupid things. The reason that it only does some of the stupid things that it *could* is that they answer (imperfectly, of course) to the people. The American people probably aren't interested in an abortion mandate, so it isn't going to happen. That's the bulwark; not the courts. These are political/policy questions, and I have no idea why anyone would think that the courts are particularly well situated to resolve them. To be clear, I'm not taking a substantive position on religious objections to the contraception mandate or anti-discrimination laws. I'm honestly not sure how I would vote on those as a legislator. It would likely depend on what the package being offered was and what I understood the reality of the situation to be. That's precisely the point: these are issues that a lot of people care a lot about. Let's not ask the courts to resolve them for us. Kicking this kind of question to the courts--which, again, have shown themselves to be terrible at dealing with them--through broad-sweeping RFRA type language seems to me an act of political cowardice. Sure, it is a nice club to bludgeon some government officials with, but that's not a very compelling argument for it. I don't blame the drafters and supporters of the original RFRAs, by the way. I supported RFRA at the time. But in retrospect, I surely wouldn't do it again given its possible reach. Each time Doug and others assure us that these new RFRAs really aren't that big of a deal because they only reach a small set of cases, I am left to wonder. How could we possibly know that to be the case? On Tue, Mar 11, 2014 at 4:53 PM, Berg, Thomas C. <tcb...@stthomas.edu>wrote: > Mississippi does not have a law against sexual-orientation > discrimination; if I understand the Lupu et al. letter correctly, the local > resolutions in Oxford, Hattiesburg etc. are not laws. Therefore, whatever > the motivations of the proponents of the Mississippi state RFRA, it seems > the statute won't make any difference in the area of gay rights and > religious objections. Isn't it more likely that a state RFRA in > Mississippi would be used, say, by a mosque to protect itself from > indifference or cloaked discrimination that might not be reachable under > Employment Division v. Smith--or by other religious organizations to protect > themselves from a variety of other non-tolerant things that officials in > Mississippi have been known to do? (This is not a case like Arizona, where > a state RFRA already existed; and unless I'm mistaken, Mississippi's free > exercise clause has not been interpreted yet on the question whether claims > of substantial burdens on religious exercise deserve any heightened > scrutiny.) > > > > I want to emphasize that I, like the signers of the Lupu et al. letter (p. > 4), would like to see a state like Mississippi adopt "enforceable policy at > the state and local level" protecting gays and lesbians from > discrimination. I don't know if it ever has a chance of happening. But > one way to guarantee it won't happen is to suggest that there can be no > exemptions from such laws in the statute itself or under a general > religious-freedom act. (Although the Lupu letter frequently refers to > discrimination by for-profit businesses, it also speaks more generally of > rejecting exemptions from "civil rights laws," which could mean no > exemptions for religious non-profit organizations either. I wonder whether > the signers of the letter think, for example, that if a state law prohibits > sexual-orientation discrimination in housing including educational housing, > an evangelical or Orthodox Jewish college that provides married-student > housing but excludes same-sex married couples cannot be exempted, because > it's violating a statutorily-declared civil right?) > > > > There are complexities in the way these battles play out politically. > Those of us who have argued for several years for exemptions accompanying > same-sex marriage enactments in the blue states have done so with the > feeling that in those states, with marriage equality enacted and with > wide-ranging anti-discrimination laws, the objectors would become the > minority needing protection. So we've sought to protect religious > organizations, as well as a few very small businesses directly tied to > weddings or marriage support (marriage counseling etc.). Of course, we ran > into a lot of pushback, even as to religious organizations, because, well, > those were blue states and people didn't want exemptions from civil-rights > laws. Now, in the red states, it can be argued that some of the proposals > are highly imbalanced or are slaps at gays and lesbians: Kansas's certainly > was, and some would say Arizona's. But I really question whether these > would be the effects of enacting a RFRA for the first time in a state like > Mississippi, where there aren't gay-rights laws to be exempted from in the > first place, and where various religious minorities (many of them > non-Christian) can face indifference and cloaked hostility. > > > > This is another way of expressing the point Alan just made: there are > costs to opposing RFRAs, costs that people on the left ought to care about > too (perhaps especially in red states). Are those costs being weighed > accurately against the predicted costs on the > anti-discrimination/commercial side? > > > > ----------------------------------------- > > Thomas C. Berg > > James L. Oberstar Professor of Law and Public Policy > > University of St. Thomas School of Law > > MSL 400, 1000 LaSalle Avenue > > Minneapolis, MN 55403-2015 > > Phone: (651) 962-4918 > > Fax: (651) 962-4996 > > E-mail: tcb...@stthomas.edu > > SSRN: http://ssrn.com/author='261564 > > Weblog: > http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> > > > ---------------------------------------------------------------------------- > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Tuesday, March 11, 2014 12:43 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: letter opposing Mississippi RFRA > > > > To be fair to Doug and others of us who fought for RFRA and RLPA and > RLUIPA way back when, we thought they were worth fighting for because of > all manner of cases that *did not involve the commercial sector* -- > including, for example, Doug's prisoner case that the Court just granted. > Doug is right that no one, back then, thought commercial sector cases could > prevail -- because they have virtually never received so much as a vote in > the Supreme Court. > > But that was then; this is now. If Hobby Lobby prevails, and if these > state laws are enacted against the backdrop of such a Supreme Court > decision and a manifest legislative and popular intent to promote > exemptions in the commercial sphere, well . . . that's a different > landscape entirely, isn't it? > > > > On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin <hillelle...@gmail.com> > wrote: > > I'm not sure I understand. If such RFRAs are so ineffectual then why are > some people pushing so hard for them? If they aren't worth fighting > against, why are they worth fighting for? > > > > > On Tuesday, March 11, 2014, Douglas Laycock <dlayc...@virginia.edu> wrote: > > There is of course nothing in the actual experience of state RFRAs to > support any of the speculative fears in the letter. Litigation has been > scarce; decisions favoring religious claimants have been scarcer. RFRAs > have been significantly under enforced compared to the aspirations of their > drafters. > > > > The recent string of wins under federal RFRA in the contraception cases > arise in a context where government attempted to override long held and > clearly stated teaching of two of the largest religious groups in the > country (Roman Catholics and evangelical Protestants). Even if those wins > hold up in the Supreme Court, which is far from assured, there is little > reason to think they would be replicated in other contexts. > > > > 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<religionlaw-boun...@lists.ucla.edu>] > *On Behalf Of *Ira Lupu > *Sent:* Tuesday, March 11, 2014 12:21 PM > *To:* Law & Religion issues for Law Academics > *Subject:* letter opposing Mississippi RFRA > > > > A group of ten legal academics, including myself and a number of others > who post on this list, have prepared a letter urging the legislative defeat > of a proposed Religious Freedom Restoration Act in Mississippi. The letter > has recently been delivered and made publicly available. It can be found > here: http://www.thirdway.org/publications/795 > > > > -- > > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > > -- > Hillel Y. Levin > Associate Professor > > University of Georgia > School of Law > 120 Herty Dr. > Athens, GA 30602 > (678) 641-7452 > hle...@uga.edu > hillelle...@gmail.com > SSRN Author Page: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 > > > > _______________________________________________ > 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. > -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________ 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.
