Just to clarify: Brown I did nothing for Linda Brown, and then Brown II adopted "all deliberate speed." I'm certainly glad that Brown was decided as it was, but we shouldn't overestimate the difference it made to the actual lives of most people in the first several years. I graduated from a segregated high school in North Carolina in 1958. And I'm ashamed to say that I graduated from a segregated Duke University in 1962.
Sandy Sent from my iPhone On Jul 2, 2014, at 12:25 PM, "Brian Landsberg" <blandsb...@pacific.edu<mailto:blandsb...@pacific.edu>> wrote: I have long thought, as Sandy does, that Naim v. Naim was a disgrace. It is hardly proof that Brown “did absolutely nothing,” though. Even Gerald Rosenberg’s flawed analysis of Brown does not go that far. Looking more closely at Naim, it seems somewhat less outrageous that the Court waited for better cases, which ultimately came in McClaughlin and Loving. Naim was a Chinese citizen who had married a white woman in North Carolina. She sued for divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s eligibility for U.S. citizenship. Even if the Virginia law was held unconstitutional, the lower court could still have granted an annulment or divorce. The husband’s lawyer did not argue that the racial classification was unreasonable, according to an article in 42 American Journal of Legal History, 119. Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably reflecting their fear that the post-Brown slogan “integration means intermarriage” would gain added credence and endanger compliance with Brown. None of this excuses the Court for ducking the issue, but perhaps it helps explain why the Court waited for a prosecution of an interracial couple before deciding the issue. For a good overview, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America. From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 7:20 PM To: Law & Religion issues for Law Academics Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law & Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response ("I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility") is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? "The life of the law should be experience," and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" <mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote: With regard to Sandy’s comment that there isn’t a chance in hell of getting funding from Congress to cover these methods of contraception: Do we agree that a less restrictive means is available for purposes of RFRA and (where applicable) constitutional analysis, even if the government (including Congress) is for some reason unwilling to use it? The political difficulty (or impossibility) of getting agreement on implementing an approach does not make it unavailable; it just means that there is no consensus on using it. Do we agree on that point? On the question whether govt funding may be a less restrictive means: The majority opinion does suggest that the government could be required, if it seeks to advance its compelling interest, to incur a cost that is small compared to the cost of the entire program. A means of advancing that interest that requires the spending of money could be a less restrictive means – less restrictive of religious liberty – than a requirement that the individual or business incur the cost. See the discussion that begins at the top of page 41, and this excerpt from pp. 42-43: “The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. … It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA. … If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. “We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.’). HHS’s view that RFRA can never require the Government to spend even a small amount reflects a judgment about the importance of religious liberty that was not shared by the Congress that enacted that law.” Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 12:28 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Hobby Lobby Question This is a good question. AS I read the opinion it tends to rely on the fact that the insurance providers will be required to provide the coverage “for free” (given that it will overall cost less to cover than would pregnancies), so that the government must allocate not a single new penny. If, on the other hand, a new appropriation, even of a penny, would be necessary, then we all know that there isn’t a chance in hell of that being voted by Congress. sandy From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Monday, June 30, 2014 9:54 AM To: Law & Religion issues for Law Academics Subject: Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. 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