Oh, if you're referring to the grandfathering discussion, I'd agree . . . except that it's rejected by a majority of the Court.
On Fri, Jul 4, 2014 at 1:48 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > But why should the Court have cared about the reasons for the > accommodation of non-profits, if underinclusion (independent of that > accommodation) did "appreciable damage" to government's interest and > therefore rendered it uncompelling? The accommodation never gets into the > picture if underinclusion is fatal at the compelling interest step. So > something has changed analytically. Just AMK being inconsistent and > holding out? Or are there reasons to say O Centro was right on this point, > and Hobby Lobby right not to follow it? > > > On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > >> I don't think the HL Court does move away from the O Centro analysis on >> underinclusiveness. It treats the HHS "secondary accommodation" just as >> the O Centro court treated the marijuana exception--as a case in which the >> government could not explain why the reasons for creating that exception >> would not apply with full force to the requested exemption. The line the >> government had drawn, in other words, was arbitrary as far as the Court was >> concerned. >> >> >> On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu <icl...@law.gwu.edu> wrote: >> >>> Eugene's arguments here are very strong. Exceptions to federal laws are >>> frequent, and sometimes based on weak policy reasons. >>> >>> But then what do we make of the unanimous decision in O Centro, in which >>> the Court characterizes the peyote exception for members of Native American >>> tribes as doing "appreciable damage" to the government's interest in >>> limiting access to controlled substances, and therefore undermining the >>> argument against a RFRA exception from the Controlled Substances Act for >>> hoasca tea? In the lower federal courts, this move from O Centro was >>> repeatedly cited in support of a conclusion that exceptions to the >>> contraceptive mandate (primarily the grandfathering of pre-ACA plans) >>> undermined the weight of the government's interest in denying a RFRA >>> exception. What happened to that argument in Hobby Lobby? Was it just a >>> makeweight, poorly reasoned argument to begin with? Or is there a >>> difference between the O Centro context and the Hobby Lobby context that >>> explains the move away from O Centro's treatment of underinclusion? >>> >>> >>> On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene <vol...@law.ucla.edu> >>> wrote: >>> >>>> I appreciate Mark’s argument, but I wonder how far it >>>> goes. Tax law is an excellent example. There may be “a very strong >>>> reason” for having many tens of millions of people pay no income tax at >>>> all. But I doubt that there’s a very strong reason for every single tax >>>> exemption out there. There are legitimate reasons, to be sure, plausible >>>> reasons, but not “very strong” ones, and maybe not even “strong” ones. And >>>> many might have seemed strong once, but now remain chiefly because of >>>> legislative inertia. Does the conclusion that there are not-very-strong >>>> reasons for some secular exemptions mean that there has to be a religious >>>> exemption? >>>> >>>> >>>> >>>> Likewise, consider the Copyright Act, which contains a >>>> prohibition on various uses of a copyrighted work in sec. 106, and then >>>> about 15 sections starting with sec. 107 setting forth exemptions; many of >>>> those sections have quite different subsections, so there are dozens of >>>> exceptions. For some, there may be a very strong reason, but for others >>>> it’s the result of political deals for the benefit of often small groups, >>>> sometimes decades or even a century ago. Does it follow that anyone who >>>> has a religious objection to copyright law is entitled under RFRA to an >>>> exemption? >>>> >>>> >>>> >>>> Eugene >>>> >>>> >>>> >>>> Mark Scarberry writes: >>>> >>>> >>>> >>>> Jim's analysis is very helpful. >>>> >>>> >>>> >>>> Now to disagree with him and others on one point: >>>> >>>> >>>> >>>> On the relevance of gross underinclusion for the compelling interest >>>> question, I'd think it would matter whether there is a strong reason for >>>> the underinclusiveness. If not, then it would call into question the govt's >>>> own view of the importance of the interest. >>>> >>>> >>>> >>>> With regard to lots of people not paying income tax, there is a very >>>> strong reason for tailoring a progressive income tax so that people with >>>> little income pay little or no income tax. Also, the purpose of a >>>> progressive tax system is not just to raise money, but to do so in a way >>>> that meets social goals directly related to the progressivity. There >>>> doesn't seem to be any similar reason, for example, that justifies the >>>> grandfathering of plans under the ACA. >>>> >>>> _______________________________________________ >>>> 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 >>> >>> _______________________________________________ >>> 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. >> > > > > -- > 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 > > _______________________________________________ > 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.
