Just to clarify, I see jurisdiction-by-jurisdiction RFRAs as
implementing what I call a “common-law model”: as with common law defenses,
privileges, and the like, they (1) leave courts with the first call on whether
to create an exemption, but (2) allow legislatures to modify or repeal those
exemptions if they disapprove of the courts’ decisions.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 09, 2014 9:59 AM
To: Law & Religion issues for Law Academics
Subject: Re: "Divisiveness"
Chip:
I am in total agreement of your analysis, except that I think there is a third
way. That would be for legislatures to consider religious exemptions when they
enact individual laws (as they did before Smith, and after as well). The
results would still be inconsistent over time ((1) sometimes the legislature
will grant an exception; sometimes it won't; and (2) courts will still have to
resolve disputes on the margins), but at least they would have a majoritarian
pedigree on the whole.
We tolerate all kinds of legislative inconsistency because we understand that
political interests change over time, issues that seem similar may appear
different at the time of enactment, lobbying groups gain and lose power, the
legislators themselves change over time, and so on. We don't demand consistency
of legislators the same way we do of courts. Legislators are allowed to be
inconsistent (within some broad due process/equality boundaries, I suppose).
We could still quibble about the role of courts in this system. They'll still
have to resolve some kinds of disputes, no doubt. Which side should they err
on? Should their guiding principle be to force majoritarian engagement? Reverse
the burden of legislative inertia? Etc. But at least we would have legislative
guidance beyond "do good stuff when it comes to legislative exceptions," which
is what RFRA yields. This abdication of policy-making responsibility by
legislators is indefensible.
Eugene can correct me if I'm mistaken, but I think his proposed common-law
approach to religious exceptions points in this direction.
On Mon, Jun 9, 2014 at 12:43 PM, Ira Lupu
<icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote:
It's a very old lesson. Legislators support vague delegations aimed at some
general good (clean air, workplace safety, endangered species), and claim
political credit for doing so. Then they (or their successors) sit back and
criticize agencies and courts that have to apply those vague standards to
specific facts. Choices made from outside the veil of ignorance are inevitably
much more difficult than those made from behind it.
But I am making a further point. The context of religious exemptions --
because of all the variations among faiths (beliefs and practices) and all the
variations among regulatory or other government contexts in which conflicts may
arise, is uniquely vulnerable to the problem of irreconcilable inconsistency
over time. We can have a regime of no exemptions under these kind of general
standards, or a regime of ad hoc, we know it when we see it, all things
considered, interest-balancing exemptions (that is, a regime that will appear
lawless when scrutinized over time). I don't think there is any other choice.
RFRA represents the latter choice, but (especially in a case made prominent by
its culture war salience) the judicial outcome will inevitably be seen as an
act of bad faith by the losers (whichever side that is).
On Mon, Jun 9, 2014 at 12:29 PM, Hillel Y. Levin
<hillelle...@gmail.com<mailto:hillelle...@gmail.com>> wrote:
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<mailto: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<mailto: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>
> [mailto:religionlaw-
> boun...@lists.ucla.edu<mailto: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
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--
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<tel:%28202%29994-7053>
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<tel:%28678%29%20641-7452>
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
_______________________________________________
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--
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<tel:%28202%29994-7053>
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
_______________________________________________
To post, send message to
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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