What's ironic to me is that the same legislators (I.e. All of them) who attack the courts for overreaching and making policy-decisions chose to bestow immense policy-making power on those same courts through RFRA. There's a legislative process lesson in there somewhere.
On Monday, June 9, 2014, Ira Lupu <icl...@law.gwu.edu <javascript:_e(%7B%7D,'cvml','icl...@law.gwu.edu');>> wrote: > It is worth recalling that federal RFRA itself was anything but divisive. > Au contraire. It passed with overwhelming support from both parties, and > wide support among civil rights and civil liberties groups (with Hobby > Lobby under advisement, some of these groups are now running from RFRA like > it was the plague). > > The problem now is not divisiveness, per se. Like any controversial > Supreme Court decision, some will hate it and others will love it. > Inevitably, these folks will be divided by their disagreement. > > The problem is legitimacy. Free exercise standards, pre-Smith, were > incredibly plastic -- sometimes you got Yoder, Thomas, or Frazee, and > sometimes you got Goldman, O'Lone, Lyng, and Smith itself (O'Connor's > concurrence). RFRA codifies the regime of Sherbert-Yoder, but that has > proven in the lower courts to be equally plastic at every turn. What is a > substantial burden, a compelling interest, a less restrictive means? Does > RFRA restore U.S. v Lee, including its dictum about commercial actors > accepting relevant regulatory regimes? Does it restore Braunfeld v. Brown? > (See the Kagan -- Clement colloquy at oral argument about what RFRA > "restores.") > > The fussing over state RFRA's recently has reflected the same massive > uncertainty over what they will be held to protect -- wedding vendor > refusal to serve same sex couples? Employer refusal to provide spousal > benefits to same sex spouses of employees? Let's just leave it to the > courts (in these cases, state courts) is not reassuring to anyone. > > What I fear is that, whatever the outcome in Hobby Lobby, the losers will > never believe that they lost based on any legal principle that will be > applied consistently over time. Accordingly, they will believe that they > lost only on culture war politics. Religious exemptions present many deep > problems, including judicial appraisal of the religious significance of > particular acts, but this problem of inconsistency (and therefore > illegitimacy) over time seems particularly severe. > > > On Mon, Jun 9, 2014 at 11:10 AM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > >> I appreciate Alan's attempt to cabin the "divisiveness" >> concept, but I wonder whether it works. Nothing is beyond the scope of >> political decision-making -- there is always the possibility of >> constitutional amendment, and, more importantly, so long as various >> decisions involve the contested interpretation of constitutional language, >> there is the possibility of using political processes to select Justices >> who will take a different view of the matter. Indeed, my sense is that >> some of the most prominent political divisions along religious lines have >> come with regard to decisions that aimed to take things off the table, but >> have failed to do so. Roe v. Wade is the classic example, though in some >> measure the various government speech decisions, from the school prayer >> case onwards, have had that effect as well. >> >> >> >> Now it may well be that other decisions have indeed settled matters in >> considerable measure, and thus diminished religious groups’ political >> mobilization as religious groups. But my guess is that it’s often not easy >> to predict which creates more mobilization of religious groups as religious >> groups: a particular executive or legislative policy decision, or a Supreme >> Court decision reversing that policy decision. >> >> >> >> Eugene >> >> >> >> > -----Original Message----- >> >> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> >> > boun...@lists.ucla.edu] On Behalf Of Alan Brownstein >> >> > Sent: Sunday, June 08, 2014 7:37 PM >> >> > To: Law & Religion issues for Law Academics >> >> > Subject: RE: "Divisiveness" >> >> > >> >> > If divisive means that people will be upset by a substantive decision >> than Eugene >> >> > is clearly correct. I have always thought the issue was whether a >> decision was >> >> > one that provoked political divisions along religious lines in the >> sense that if >> >> > government could promote religion (or interfere with religion) >> religious groups >> >> > would have an additional incentive to organize and mobilize as >> religious groups >> >> > in order to make sure that it was their faith that the government >> promoted and >> >> > that it was not their faith that was subject to government >> interference. Placing a >> >> > church-state issue beyond the scope of political decision-making by >> subjecting it >> >> > to constitutional constraints avoided (or at least mitigated) these >> kinds of >> >> > political/religious divisions. >> >> > >> >> > There is probably a better term for this concern than divisiveness. >> >> > >> >> > Alan Brownstein >> >> _______________________________________________ >> 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. >> > > > > -- > 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.
