I like Alan's argument too, though it doesn't fit so well with the O Centro opinion, which emphasized "appreciable damage" to government interests from the peyote exemption, rather than religious favoritism. (N.B. Non-Native American religions do not have the benefit of the peyote exemption, nor to my knowledge have any of those ever won a RFRA exemption, so religious favoritism still inheres in the scheme. And I seriously doubt whether the non-Native American faiths could win such a case, because the government can probably prove health harms or trafficking risks or both.) Cf. Peyote Way, Inc. v Thornburgh (5th Cir, 1991, pre-RFRA, post Smith..)
On Fri, Jul 4, 2014 at 5:17 PM, Alan Brownstein <aebrownst...@ucdavis.edu> wrote: > I wonder if an implicit part of the Court's concern about underinclusion > in O Centro is that there are constitutional concerns about religious > equality and religious favoritism if the government grants an accommodation > for one faith but denies it to another, arguably similarly situated, faith. > Or to put it slightly differently, once the government recognizes that > religious liberty concerns justify an accommodation from a particular law > for a particular faith, the government has some burden to explain why those > same religious liberty concerns do not justify an accommodation from the > same law for a different faith. If I remember O Centro correctly (and its > been a while since I read the Court's decision) the government was > insisting that the mere fact that the tea that was used in the religious > ritual was on the controlled substances list was a sufficient showing to > establish a compelling interest in seizing the tea. At that level of > generality, it is hard to accept that one faith deserves an exemption from > the controlled substances law but another does not. > > > > I don't suggest that this is the only basis for distinguishing O Centro > and Hobby Lobby, but it may be part of the story. > > > > Alan > ------------------------------ > *From:* religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [ > icl...@law.gwu.edu] > *Sent:* Friday, July 04, 2014 11:56 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby > Question"] > > Chris, I think you are exactly right on the merits of distinguishing > HL from O Centro on this point (that grandfathering is a transition > process, and peyote exception is permanent). The mystery to me is that no > one on the Court, on either side, thinks it necessary to respond to the O > Centro based argument from underinclusion, when that argument was so > popular in the lower courts (including in the Tenth Circuit en banc in > Hobby Lobby). They all just treat it like an embarrassing relative in the > room, rather than the elephant it might have been. And that does raise a > number of questions, including the force of O Centro on this point going > forward. > > > On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund <l...@wayne.edu> wrote: > >> Sorry, Chip, I sent my post before I got your previous post. Forgive >> me for that—I think I get what you mean: O Centro says the exception for >> peyote is enough to necessitate an exception for hoasca; Hobby Lobby >> rejects the grandfathered exceptions as enough to necessitate the religious >> for-profit exception. I don’t have much to say; maybe you’re right there’s >> some inconsistency here. But Marty has written on this before, and I’ve >> always thought him right: The grandfather exceptions are temporary, meant >> to ease the government’s interests in minimizing administrative burdens, >> ensuring coverage, and maintaining continuity of coverage. That’s enough >> to defeat the underinclusion argument in Hobby Lobby. If Congress’s >> approval of peyote for Native American religious believers had a sunset >> provision, I can’t imagine the Court would have relied on that very heavily >> in O Centro. >> >> >> >> I’m saying this without the Hobby Lobby opinions in front of me. >> >> >> >> Best, >> Chris >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu >> *Sent:* Friday, July 04, 2014 2:13 PM >> >> *To:* Law & Religion issues for Law Academics >> *Subject:* Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby >> Question"] >> >> >> >> I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that >> said the government's interests in maximizing coverage of pregnancy >> prevention services is not compelling. And they did NOT get that, which is >> why litigation will continue for years. I'm still asking whether the >> different treatment of underinclusion in O Centro and HL is sound as a >> matter of legal reasoning, or is based on something else. And I haven't >> seen an answer that responds in those terms. >> >> >> >> On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund <l...@wayne.edu> wrote: >> >> I think Marty has it exactly right here. And I find it interesting how >> the Court sees RFRA largely as giving it greater leeway in deciding what >> counts as underinclusion. It’s not unlimited leeway, of course, for the >> reasons that Eugene gives. But if the issue was Free Exercise alone, I >> don’t think the exception for peyote would have mattered for hoasca (O >> Centro), or the exception for religious non-profits would count for >> for-profits (Hobby Lobby), or 40+ states making exceptions for beards would >> count for Muslims in Arkansas (the next case, Holt v. Hobbs). Those won’t >> count as exceptions for Free Exercise purposes, but they do count for RFRA >> purposes—or RLUIPA purposes, as in the last example. >> >> >> >> Continuing in this vein, it surprises me how RFRA analysis almost always >> proceeds the same way that Free Exercise Clause analysis proceeds: The >> challengers must find exceptions somewhere; what RFRA enables is a wider >> field of vision in deciding what counts as an “exception.” And In this >> sense, Hobby Lobby is a win for the government here. Hobby Lobby really >> wanted a decision that said that exemptions didn’t matter and that >> religious liberty simply trumped women’s access to contraception. That is >> very far from the Court’s actual reasoning. >> >> >> >> Best, >> >> Chris >> >> ___________________________ >> >> Christopher C. Lund >> >> Associate Professor of Law >> >> Wayne State University Law School >> >> 471 West Palmer St. >> >> Detroit, MI 48202 >> >> l...@wayne.edu >> >> (313) 577-4046 (phone) >> >> (313) 577-9016 (fax) >> >> Website—http://law.wayne.edu/profile/christopher.lund/ >> >> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 >> >> >> >> >> 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. >> >> >> >> >> >> -- >> >> 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. >> > > > > -- > 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. > -- 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.
