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

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