Re: letter opposing Mississippi RFRA

[Marc Stern]

  Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Steven JamarSent: Wednesday, March 12, 2014 12:05 PMTo: Law Religion & Law ListReply To: Law & Religion issues for Law AcademicsSubject: Re: letter opposing Mississippi RFRAI appreciate Kevin Chen’s clarification that he does not consider equality foreign to U.S. consitutional jurisprudence.  I agree with him that equality is not easy to corral and that equality is context dependent, like every other aspect of law.There are procedural aspects of equality and substantive aspects of equality and both matter and neither can be achieved perfectly, if that is even a meaningful concept.  The same is true for liberty.  Anytime someone is restricted from doing something, that is a restriction on “perfectâ€� liberty — hence the constitution creates a system of ordered liberty.There is no “pure equaltyâ€� that demands anything, either as legal concept or a political concept.As to the way equality is used — it may be used too often with a substantive goal to homogenize, though I’ve never seen it used that way in any constitutional argument, political argument, or school setting, but maybe it actually is used that way — though how often is “too muchâ€� is perhaps interesting.As to "equality is best sought for those similarly situatedâ€� — sort of begs the question, doesn’t it?  If they are already “similarly situatedâ€�, are they not already “equalâ€� for at least some values of “equalâ€� and “similarly situatedâ€�?  But, as we are straying far from the topic, I will leave it there.  As to whether “religious believers are not similarly situated,â€� that is surely true insofar as the constitution provides special protection for them and RFRAs do as well.  The questions seem to be what subtantive benefits should religious believers get; when should they be able to opt out of something; when should their liberty interest be limited by equality interests or the interests in general welfare or the liberty interests of others?Steve
-- Prof. Steven D. Jamar                     vox:  202-806-8017Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.orgHoward University School of Law           fax:  202-806-8567http://iipsj.com/SDJ/Nothing worth doing is completed in our lifetime, Therefore, we are saved by hope. Nothing true or beautiful or good makes complete sense in any immediate context of history; Therefore, we are saved by faith. Nothing we do, however virtuous, can be accomplished alone. Therefore, we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as from our own; Therefore, we are saved by the final form of love which is forgiveness. Reinhold Neibuhr

On Mar 12, 2014, at 10:29 AM, K Chen  wrote:[snip]Pure equality demands that the terrible scores of all of these children stand without help. [snip]The way that the word "equality" is too often used is as a way to homogenize, and it makes the world more equal in only the worst ways, and less equal in all the others. Equality is best sought for those similarly situated, and religious believers are not similarly situated.[snip]
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Re: letter opposing Mississippi RFRA

[Steven Jamar]

I appreciate Kevin Chen’s clarification that he does not consider equality 
foreign to U.S. consitutional jurisprudence.  I agree with him that equality is 
not easy to corral and that equality is context dependent, like every other 
aspect of law.

There are procedural aspects of equality and substantive aspects of equality 
and both matter and neither can be achieved perfectly, if that is even a 
meaningful concept.  The same is true for liberty.  Anytime someone is 
restricted from doing something, that is a restriction on “perfect” liberty — 
hence the constitution creates a system of ordered liberty.

There is no “pure equalty” that demands anything, either as legal concept or a 
political concept.

As to the way equality is used — it may be used too often with a substantive 
goal to homogenize, though I’ve never seen it used that way in any 
constitutional argument, political argument, or school setting, but maybe it 
actually is used that way — though how often is “too much” is perhaps 
interesting.

As to "equality is best sought for those similarly situated” — sort of begs the 
question, doesn’t it?  If they are already “similarly situated”, are they not 
already “equal” for at least some values of “equal” and “similarly situated”?  

But, as we are straying far from the topic, I will leave it there.  

As to whether “religious believers are not similarly situated,” that is surely 
true insofar as the constitution provides special protection for them and RFRAs 
do as well.  The questions seem to be what subtantive benefits should religious 
believers get; when should they be able to opt out of something; when should 
their liberty interest be limited by equality interests or the interests in 
general welfare or the liberty interests of others?

Steve

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

Nothing worth doing is completed in our lifetime, 
Therefore, we are saved by hope. 
Nothing true or beautiful or good makes complete sense in any immediate context 
of history; 
Therefore, we are saved by faith. 
Nothing we do, however virtuous, can be accomplished alone. 
Therefore, we are saved by love. 
No virtuous act is quite as virtuous from the standpoint of our friend or foe 
as from our own; 
Therefore, we are saved by the final form of love which is forgiveness. 

Reinhold Neibuhr




On Mar 12, 2014, at 10:29 AM, K Chen  wrote:
[snip]

> Pure equality demands that the terrible scores of all of these children stand 
> without help. [snip]

> The way that the word "equality" is too often used is as a way to homogenize, 
> and it makes the world more equal in only the worst ways, and less equal in 
> all the others. Equality is best sought for those similarly situated, and 
> religious believers are not similarly situated.
[snip]

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RE: letter opposing Mississippi RFRA

[Douglas Laycock]

I don't know what the bishops or the Greens would say, but I don't think
they would object to that. They would not be specifying what you could buy
from the pharmacist.

 

What they object to is buying a policy that covers a list of items, and
explicitly on the list are items that they believe will kill people. They
contract to put those items on the list; they pay to have those items on the
list; they tempt their employees to use those items by making them available
for free. It's not even a case of giving their employees a choice of
benefits. There are no policy limits under the ACA, so an employee who
chooses a potentially abortifacient drug has not reduced by a penny her
ability to consume other medical care under the same policy.

 

Their view that these drugs sometimes act by preventing implantation is
entirely plausible, given the FDA label and given the conflicting studies.
Ella is billed as the week-after pill, which is an awfully long time for it
to work with much of  a success rate if it works only by preventing
ovulation. Their view that preventing implantation is equivalent to killing
a human being is very far from my view, but it is entirely logical, and it
is a view with enormous moral weight. I really don't think that their
objection is so mysterious or difficult to understand. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Tuesday, March 11, 2014 11:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: letter opposing Mississippi RFRA

 

Doug:

 

I'm not trying to exaggerate anything. In trying to understand the doctrine.


 

Would this be a fair description?: I am your employee. You owe me fifty
dollars for work I've done. You could pay me the money directly, knowing
fully that I might use it to purchase contraception. But I ask you instead
to deposit it directly to my pharmacist. I don't tell you that the
pharmacist will now dispense contraception for me, but you know that I
might. Under the doctrine of complicity you object to depositing the check
with my pharmacist but not with me directly. Is that correct?

On Tuesday, March 11, 2014, Douglas Laycock mailto:dlayc...@virginia.edu> > wrote:

The line is between benefits that are earmarked for a particular item and
wages that are not. It is between what the employer purchases himself, and
what the employee purchases.

First you wildly exaggerate their claim, then you say that the exaggerated
claim is ridiculous, then you infer that the actual claim is also
ridiculous.

Which is not to say that some of the people on the religious fringes, both
left and right, don't make wildly exaggerated claims. But no religious
claimant has ever won on a claim about the use of money paid over without
restriction to someone else. The only claim of that sort I can think of is
claims about paying taxes that the government then spends for immoral
purposes. Zero for however many times they have tried.

On Tue, 11 Mar 2014 22:17:40 -0400
 Steven Jamar  > wrote:
>Still complicit--the employer knows the wages will sometimes be spent on
things the employer dislikes just as much as the employer knows some
employees will use insurance for things the employer dislikes. If the theory
is complicity, that line is a pretty lame one.
>
>Sent from Steve's iPhone
>
>
>> On Mar 11, 2014, at 9:26 PM, "Brad Pardee"  > wrote:
>>
>> Because the employee's paycheck is a blank check.  The employee can do
whatever they want with it because, as part of the salary, there are no
limits on what the employee can or can't spend the money on.  However,
insurance is not a blank check.  The policy specifies what it is covering
and what it is not covering and the employer, in determining the range of
the benefits they offer, is fully involved in the decision of what is being
covered and is fully accountable to his or her God for that decision.
>>
>> Brad
>>
>> From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu  ] On Behalf Of
Hillel Y. Levin
>> Sent: Tuesday, March 11, 2014 7:36 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: letter opposing Mississippi RFRA
>>
>> I have a question for those who have religious beliefs opposed to the
contraception mandate. I do not mean this question as a provocation, but
rather in the interest of helping me to understand the problem. Suppose a
religious employer knows with 100% certainty that an employee will spend a
small amount of her income on contraception. I take it that this does not
violate a religious belief. How is that different from directing a
percentage of the employee's salary towards health insurance, which will
cover contraception?
>>
>>
>> ___
>> To post, send message to Religionlaw@lists.uc

Re: Scope of Academic Representations re: Pending Legislation

[Steven Jamar]

I do not find it all disturbing that academics engage in advocacy and do not 
present their positions in an objective, neutral way — or in a way that some 
others might think objectivity and neutrality require.  Nor do I object to 
their being advocates, tailoring arguments to the particular audience, making 
ones that are less controversial but might be more effective.  Nor do I think 
that any of us needs to or even should disclose to this list our various 
advocacy activities.  

I think our obligation in scholarship is somewhat, but not entirely, different. 
 If we are describing the law as it is, we should strive to be as clear and 
fair and objective as possible and clearly disclose where we depart from that 
standard.  But much scholarship is not about the law as it is, but rather is 
about the law as it could be and to some should be.  For that all that we 
should do is be clear that we are advocating for what should be and not 
describing what is.

We also should be fair in our use of precedents and try to be fair in our use 
(or more often “abuse”) of history.  But that is harder due to complexity and 
conflicting readings and sources.

Even in scholarship we can be advocates, but as professors and scholars we a 
have an obligation to be clear about when we are doing what.

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

"Example is always more efficacious than precept."

Samuel Johnson, 1759




On Mar 12, 2014, at 2:40 AM, jim green  wrote:

> I find it very disturbing that Laycock, et. al. basically acted as cheer 
> leaders for a bill they knew was controversial, to say the least, among their 
> fellow scholars.  The "analysis" proffered to the legislature did not mention 
> the potential non-discrimination hazards at all - that issue was completely 
> ignored - in fact, there were no downsides mentioned at all.  In this 
> political climate, this sort of intervention seems naive at best - cynics 
> might suspect more base motives.  (See 
> http://www.peachpundit.com/wp-content/uploads/2014/02/RFRA-Letter.pdf).
> 
> As for the constant appeals hearkening back to the unity of the post-Smith 
> right-left coalition that rushed through RFRA, if anything, history has shown 
> that maybe more dissent and reflection during that time would have revealed 
> that these tensions were there all along.  In the rush to paint Smith as some 
> sort of historical aberration, there seems to be a tendency to canonize the 
> scholarly response as symbolized by RFRA.Seems a bit Whiggish to me...
> 
> ---Jimmy Green
> ___
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Re: letter opposing Mississippi RFRA

[Steven Jamar]

So KC does not think equality is part of our constitutional heritage.  That 
colors a lot of his claims privileging liberty above nearly all else and seeing 
it through the lens of competing liberty claims.  The argument about equality 
not being in the phrase “equal protection” strikes me as similar to the 
argument that there is no such thing as and no need for substantive due process 
to protect libety substantively.

Steve

--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://iipsj.com/SDJ/

"Climate change is the greatest market failure the world has ever seen . . .."

Nicholas Stern, former chief economist at the World Bank





On Mar 11, 2014, at 11:58 PM, K Chen  wrote:

> The Civil War? The thing where our nation split apart and brother killed 
> brother on a then unimaginable scale due to longstanding issues baked into 
> the fabric (and constitution!) of our nation involving total enslavement of 
> certain people? And I am undervaluing its meaning because I gave a cryptic 
> answer? At first I assumed I had fallen into cross-fire between you and an 
> ideological opponent, but I was directly quoted, so I remain perplexed.
> 
> Equality isn't actually the value upheld in Amendment XIV which reads in 
> relevant part "All persons born or naturalized in the United States, and 
> subject to the jurisdiction thereof, are citizens of the United States and of 
> the state wherein they reside. No state shall make or enforce any law which 
> shall abridge the privileges or immunities of citizens of the United States; 
> nor shall any state deprive any person of life, liberty, or property, without 
> due process of law; nor deny to any person within its jurisdiction the equal 
> protection of the laws."
> 
> If you'll pardon the digression into Lincoln-Douglas debate, "equality" is 
> not the highest moral value supported here, Amendment XIV proclaims equality 
> before the law. Not a whit about, for example, equal power in society, equal 
> wages, or equal access to the best teachers, or equal testing by those 
> teachers. Upholding equality has remarkably different outcomes for, say, the 
> handicapped, depending on how equal is interpreted. Equality is nebulous 
> concept and upholding it without an attempt at detail I have no idea what 
> good bad ideas or bad ideas are going to come about. (Liberty is also 
> susceptible, so my apologies if I fell into argument-by-catchphrase 
> somewhere).
> 
> I'm not going to pretend I know exactly how the balance the interests of 
> religious believers and other marginalized persons. Like every lawyer, I find 
> it much easier to tear apart ideas submitted by others. I'm not even 
> convinced that the frame is a sensible one. A multicultural society like ours 
> is one where looking at "both sides" is an absurdity because there is in 
> reality many more sides, and I like it that way. What I mean by an equal 
> right to be wrong is protection of a diverse, plural society where many 
> people believe many things and they fight it out as free from the 
> interference of outside as we can live with. That seems to me both to be 
> right as a value, and right practically because, as many have noted, 
> bureaucrats, judges and legislators all have done a remarkably bad job of it.
> 
> -KC
> 
> 
> On Tue, Mar 11, 2014 at 10:21 PM, Steven Jamar  wrote:
> Cryptic. "Equal right to be wrong" is a good start at what? That is not 
> taking equality seriously and horribly undervalues what the civil war meant 
> and that the 14th amendment is just as much a part of the constitution as the 
> 1st and 5th.
> 
> Sent from Steve's iPhone 
> 
> 
> On Mar 11, 2014, at 10:02 PM, K Chen  wrote:
> 
>> "I can get behind liberty.  Can you (and others) get behind equality?"
>> 
>> I try to speak for others only when asked. And my answer is "maybe." Liberty 
>> is hard to nail down, but equality is even more ephemeral. At the very 
>> least, a diverse society where all citizens have an equal right to be wrong 
>> seems like a good start.
>> 
>> -KC
>> 
>> 
>> On Tue, Mar 11, 2014 at 8:15 PM, Steven Jamar  wrote:
>> I can get behind liberty.  Can you (and others) get behind equality?  Often 
>> they work together, but sometimes they are in serious conflict.  State 
>> sanctioned liberty to exclude and discriminate against denies equality to 
>> some.  State sanctioned and enforced equality limits the liberty of some who 
>> want to be free to exclude on liberty grounds.  State prohibition of 
>> discrimination on the basis of race, gender, age, and religion mean in no 
>> small part those people are at liberty to do things and to participate in 
>> things they could not without the anti-discrimination laws — so it increases 
>> their liberty (and equality) at the expense of some liberty of others who 
>> w