Beyond the question of commerce/non-commerce, there is a broader distinction between accommodations that harm others and accommodations that do not. This distinction was reflected in the Supreme Court’s opinions in United States v. Lee (among other pre-Smith cases), Cutter v. Wilkinson (upholding RLUIPA against Establishment Clause challenge), and in Justice Ginsburg’s dissent in Hobby Lobby and concurrence in Holt v. Hobbs.
Quite apart from Hobby Lobby’s status as a for-profit corporation, we (Americans United) opposed the Hobby Lobby exemption because it had the effect of stripping otherwise available healthcare coverage from employees’ compensation. We would have opposed that exemption even if the company was not a for-profit corporation – there were innocent third parties who were losing an important part of their employment compensation as a result of the exemption. There are some accommodations (a prisoner who wants to wear a beard, an individual who wants to use peyote (or wine, for that matter) as part of a religious ceremony, etc. etc.) that do not harm third parties. There are others (withholding healthcare from others, exemptions from antidiscrimination law) that harm third parties directly. That distinction was respected in the pre-Smith cases and highlighted again in Cutter, but it has come under attack in recent rounds of RFRA litigation. On Apr 1, 2015, at 2:51 PM, Gaubatz, Derek <dgaub...@imb.org<mailto:dgaub...@imb.org>> wrote: “"[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses." I’m not sure I’m seeing the principled distinction. Do not many individuals depend for their livelihood on commercial businesses? Why do liberals see the conscience of individuals like Sherbert or Thomas worthy of protection, but the conscience of an individual photographer, florist, baker, or bed and breakfast owner less worthy of protection? Justice Kagan, at least back in 1996 when she was in the Clinton White House, appeared to recognize that the consciences of individuals operating small commercial businesses was worthy of protection under a RFRA regime. Commenting on the short shrift given to the claim of a Evelyn Smith who, for religious reasons, did not want to rent one of her units to a co-habitating couple, Kagan noted that the court’s reasoning was “outrageous.” She wrote that it was “almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.” http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Wednesday, April 01, 2015 2:25 PM To: Law & Religion issues for Law Academics Subject: Eugene's Blog Post on Liberals and Exemption Rights Eugene has a new post up on Volokh Conspiracy entitled, "Many liberals’ (sensible) retreat from the old Justice Brennan/ACLU position on religious exemptions." The piece is lengthy, and I recommend folks read it in full, but I want to take issue with the following assertion at the heart of Eugene's analysis: "Yes, religious objectors can use these RFRAs to try to get exemptions from antidiscrimination laws. But religious objectors could have done the same under the Sherbert-era Free Exercise Clause that the ACLU had long championed." http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/ Insofar as we're talking about discrimination in the commercial marketplace, which is the context generating almost all of the liberal concerns about exemptions today, I have to disagree with Eugene's characterization of the law in the Sherbert era. Indeed, I make precisely the opposite argument at length in Part II of the following piece:http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ ("The Real Issue: The Unprecedented Expansion of Exemption Rights into the Commercial Realm"). Nowhere in his post does Eugene acknowledge either United States v. Lee, which is the only Sherbert-era case in which the Court explicitly addressed the issue of commercial exemptions, or Piggie Park, where the Court dismissed a commercial businesses' claim for an exemption from an antidiscrimination law as "patently frivolous." Instead, Eugene refers to Justice Brennan's pre-Sherbert dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is difficult to understand how they are a better representation of the Sherbert-era law than the following explicit statement of the Court in Lee, which was joined by Justice Brennan (as was Piggie Park): "When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees." Accordingly, I don't think the ACLU's current position can be accurately described as a "retreat" from their support of Sherbert-era exemption rights. As Eugene notes in his post, the ACLU still opposes Smith and supports exemption rights outside the commercial context. As I note in my piece, this is also true of Americans United and the Brennan Center. The strong opposition of those organizations to extending exemption rights into the for-profit commercial realm has sometimes been misread as a reversal of their position on exemption rights in general (indeed, I myself have made that mistake in the past), but as I detail in the piece cited above, an examination of the full record shows that "[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including liberal organizations, professors, and politicians — largely continue to support religious exemptions for individuals, while opposing the extension of such exemptions to commercial businesses." - Jim _______________________________________________ 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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