RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Tessa Dysart]

I apologize if I came across as rude, I did not intend to.

I don't think that the court or HL is taking away a woman's choice to use these 
methods of contraception.  In fact, the women may well get it cost free through 
another source.  But, it won't make the Green's violate their sincerely held 
religious beliefs by offering it.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Johnsen, Dawn Elizabeth
Sent: Wednesday, July 2, 2014 3:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

I do not believe Tessa Dysart's post actually contests any of the factual 
assertions in the NYT article, Guttmacher's studies, or the brief Walter and I 
wrote citing those sources (which we took great care to ensure is accurate) -- 
it impugns the sources generally, without substantiation. I have not (and 
certainly would not) contest the perfectly valid argument that if a form of 
conception might in even a small minority of cases prevent implantation, a 
woman might rationally choose not to use it, if that possibility is 
inconsistent with her religious beliefs (and of course she is free to base her 
decision on any reason). A woman with the same religious beliefs might also 
conclude that the likelihood of that risk is outweighed by the far greater 
effectiveness of the method -- which women choose typically for a combination 
of reasons, including in addition to religious and other beliefs, health 
issues, cost, effectiveness, stage of life, etc. On an aggregate level, the 
number of unintended pregnancies and abortions prevented also is a relevant 
fact to inform personal decision making and public policy. The undisputed fact 
is that leaving the choice to women, informed by their own religious beliefs, 
and removing cost as a factor through insurance reduces the number of 
unintended pregnancies and abortions (under any definition).  I believe that is 
where the decision should be made, unencumbered by the religious beliefs of her 
employer, but even if one disagrees with that, the facts (including in the 
sources I circulated and in our brief) are important to employers and women and 
their families seeking to make informed decisions.




From: 
religionlaw-boun...@lists.ucla.edu 
[religionlaw-boun...@lists.ucla.edu] on behalf of Tessa Dysart 
[tdys...@regent.edu]
Sent: Wednesday, July 02, 2014 2:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?
I certainly don't speak for the Greens or the Hahns, but if I held their 
religious convictions, I would have a hard time trusting the NY Times and 
Guttmacher as reliable sources on this issue-just as I am sure that many people 
on this listserve would not trust American's United for Life on the facts on 
how these drugs work.  If the manufacturers of Plan B and Ella don't like what 
their labels say-that is between them and the FDA.  As a not medically trained 
consumer, I think that it is reasonable to rely on the manufacturer's inserts 
for information about the drug (like we do for other prescriptions).

Again, if this is a sincerely held religious belief (that some forms of 
contraception have the possibility of preventing implantation, which would 
equal an abortion, and thus I would be party to the abortion if I paid for 
those drugs) it doesn't matter how crazy you all think it is, or really if you 
think that it is right or wrong.

As for Jean's point about Plan B thickening cervical mucus, yes, it can do 
that, which can potentially impede fertilization, but it can also make the 
lining of the uterine wall too thick, so that a fertilized egg cannot implant.  
Even a woman with poor cervical mucus can get pregnant.  Good cervical mucus 
allows the sperm to survive longer (good for women who may not be tracking 
ovulation).  But, well timed intercourse (even for a woman with poor cervical  
mucus) can lead to pregnancy.

As for the point about the Green's contributions to companies that make morning 
after pills-I  have heard that claim, but I have also heard that those 
investments are through their 401k plans.  Honestly, I don't know if it is true 
or not.  Also, my guess is that most of us aren't up on every company that we 
invest in through our 401k plan.

Finally, on the blood transfusion point-the Court doesn't come anywhere near 
deciding that issue-the dissent makes that clear.


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Johnsen, Dawn Elizabeth
Sent: Wednesday, July 2, 2014 1:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

Here is what the beginning of the NYT article I circulated says about that (and 
you can read the entire article at t

RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Johnsen, Dawn Elizabeth]

I do not believe Tessa Dysart's post actually contests any of the factual 
assertions in the NYT article, Guttmacher's studies, or the brief Walter and I 
wrote citing those sources (which we took great care to ensure is accurate) -- 
it impugns the sources generally, without substantiation. I have not (and 
certainly would not) contest the perfectly valid argument that if a form of 
conception might in even a small minority of cases prevent implantation, a 
woman might rationally choose not to use it, if that possibility is 
inconsistent with her religious beliefs (and of course she is free to base her 
decision on any reason). A woman with the same religious beliefs might also 
conclude that the likelihood of that risk is outweighed by the far greater 
effectiveness of the method -- which women choose typically for a combination 
of reasons, including in addition to religious and other beliefs, health 
issues, cost, effectiveness, stage of life, etc. On an aggregate level, the 
number of unintended pregnancies and abortions prevented also is a relevant 
fact to inform personal decision making and public policy. The undisputed fact 
is that leaving the choice to women, informed by their own religious beliefs, 
and removing cost as a factor through insurance reduces the number of 
unintended pregnancies and abortions (under any definition).  I believe that is 
where the decision should be made, unencumbered by the religious beliefs of her 
employer, but even if one disagrees with that, the facts (including in the 
sources I circulated and in our brief) are important to employers and women and 
their families seeking to make informed decisions.




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Tessa Dysart [tdys...@regent.edu]
Sent: Wednesday, July 02, 2014 2:11 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

I certainly don’t speak for the Greens or the Hahns, but if I held their 
religious convictions, I would have a hard time trusting the NY Times and 
Guttmacher as reliable sources on this issue—just as I am sure that many people 
on this listserve would not trust American’s United for Life on the facts on 
how these drugs work.  If the manufacturers of Plan B and Ella don’t like what 
their labels say—that is between them and the FDA.  As a not medically trained 
consumer, I think that it is reasonable to rely on the manufacturer’s inserts 
for information about the drug (like we do for other prescriptions).

Again, if this is a sincerely held religious belief (that some forms of 
contraception have the possibility of preventing implantation, which would 
equal an abortion, and thus I would be party to the abortion if I paid for 
those drugs) it doesn’t matter how crazy you all think it is, or really if you 
think that it is right or wrong.

As for Jean’s point about Plan B thickening cervical mucus, yes, it can do 
that, which can potentially impede fertilization, but it can also make the 
lining of the uterine wall too thick, so that a fertilized egg cannot implant.  
Even a woman with poor cervical mucus can get pregnant.  Good cervical mucus 
allows the sperm to survive longer (good for women who may not be tracking 
ovulation).  But, well timed intercourse (even for a woman with poor cervical  
mucus) can lead to pregnancy.

As for the point about the Green’s contributions to companies that make morning 
after pills—I  have heard that claim, but I have also heard that those 
investments are through their 401k plans.  Honestly, I don’t know if it is true 
or not.  Also, my guess is that most of us aren’t up on every company that we 
invest in through our 401k plan.

Finally, on the blood transfusion point—the Court doesn’t come anywhere near 
deciding that issue—the dissent makes that clear.


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Johnsen, Dawn Elizabeth
Sent: Wednesday, July 2, 2014 1:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

Here is what the beginning of the NYT article I circulated says about that (and 
you can read the entire article at the link).  Also I recall an NPR story 
within the last year that the labels for Ella and Plan B have been updated in 
Europe to say they act by blocking ovulation and are not effective if ovulation 
already has occurred. My understanding from all this is the labels here in the 
US are out of date from the evidence and I’m not sure what it takes to change 
that (or what the normal practice is for that):


Labels inside every box of morning-after pills, drugs widely used to prevent 
pregnancy
 after sex, say they may work by blocking fertilized eggs from implanting in a 

Re: Hobby Lobby and discrimination against LGBT persons or couples

[Ira Lupu]

Thanks, Alan.  Here is a link to the blog's cover page, which should get
you to our piece: ​
http://berkleycenter.georgetown.edu/rfp/blog
​.  We're at the top now.​


And here is the text:
"Prior to the Supreme Court’s decision in the contraceptive mandate cases,
both of us published blog posts that emphasized the potential harm to
women’s interests that a religious exemption for Hobby Lobby would cause.
(See the previous *Cornerstone* posts“The Constitutional Costs of Religious
Freedom in the Marketplace”

 and “The Flaws of Individualized Religious Exemptions,”

in
addition to “Symposium: Religious Questions and Saving Constructions.”
)
What we perceived as the central legal question has mapped onto the salient
political question—whether religious objections to contraception should be
allowed to trump women’s interests in access to contraception.

This way of understanding the case deeply informs the Supreme Court’s
opinion in *Burwell v. Hobby Lobby*. In ruling that the government failed
to prove that it used the “least restrictive means” to accomplish its
purposes of advancing women’s health, the Court relied heavily on two
alternative means by which the government may achieve the same goal:

   1. Provide contraceptive services at the government’s own expense to
   women whose employers object to coverage, or

   2. Extend the current accommodations of religious nonprofit
   organizations (schools, charities, hospitals, etc.) to for-profit firms
   like Hobby Lobby.

Indeed, Justice Kennedy’s concurring opinion took pains to emphasize that
the government’s interest in the reproductive health of female employees is
indeed compelling. His opinion also suggests that direct public payment for
a separate program is unnecessary when the government already has in place
an accommodation that “equally furthers the Government’s interest [in
women’s health] but does not impinge on the [Hobby Lobby’s] religious
beliefs.” In Justice Kennedy’s view of the case, both sides ultimately can
satisfy their interests.

But “ultimately” may be a long time, and the path to satisfying all
interests will be complex and full of legal uncertainty. If the federal
government intends to subsidize contraceptive services for the employees of
Hobby Lobby and similar firms, it will require congressional authority to
make such expenditures. There is no reason to believe the House of
Representatives would even consider it, much less approve it.

The more readily available alternative for the government is to include
for-profit firms in the existing accommodation for objecting religious
nonprofits. The existing accommodation—under which insurance carriers pay
for contraception outside the insurance policy, rather than through
it—cannot be extended overnight. Any such policy change will have to go
through the regulatory process, with an opportunity for comments from
affected parties (including insurance companies, some of which will balk at
this new requirement). This process is likely to take a few years, not a
few months; in the meantime, employees of religiously objecting companies
will have no insurance coverage for the contraceptives at issue.

Moreover, the existing accommodation faces significant legal challenges of
its own. A number of religious nonprofits have filed lawsuits, arguing that
the accommodation fails to address their religious objections. If the
existing accommodation is extended to Hobby Lobby and other objecting
for-profit companies, they may also decide that the accommodation fails
protect their interests and sue under RFRA. No one knows if the government
will ultimately prevail in the lawsuits filed by religious nonprofits, and
it will take at least a year for the Supreme Court to decide whether the
existing accommodation is legally sufficient. Even if the Court decides
that the accommodation is insufficient for religious nonprofits, it could
decide that the accommodation is adequate for commercial entities.

Fortunately, the fulcrum on which this case turns—the ability of government
to satisfy both religious interests and the competing concerns of employees
and their dependents—suggests that *Burwell v. Hobby Lobby* is not nearly
so sweeping or radical as it may seem. Although it is true that for-profit
firms can now bring RFRA claims, most claims by for-profit employers to
escape their legal obligations will not fare so well. For example, the
government has very strong interests in combating employment
discrimination, and the government has no obvious alternative means to
accommodate 

RE: Hobby Lobby and discrimination against LGBT persons or couples

[Alan Brownstein]

Chip,

This link doesn’t work (at least it doesn’t work on my computer.) Is there 
another way to access your post. I would like to read it.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Wednesday, July 02, 2014 11:00 AM
To: peabody...@gmail.com; Law & Religion issues for Law Academics
Subject: Hobby Lobby and discrimination against LGBT persons or couples

With apologies for self-promotion, I suggest that Michael Peabody or others 
interested in his question about Hobby Lobby, and discrimination against LGBT 
persons or couples, might be interested in this post by Bob Tuttle and me: 
http://berkleycenter.georgetown.edu/rfp/blog/hobby-lobby-in-the-long-run

See especially the penultimate paragraph.

--
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.

RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Tessa Dysart]

I certainly don't speak for the Greens or the Hahns, but if I held their 
religious convictions, I would have a hard time trusting the NY Times and 
Guttmacher as reliable sources on this issue-just as I am sure that many people 
on this listserve would not trust American's United for Life on the facts on 
how these drugs work.  If the manufacturers of Plan B and Ella don't like what 
their labels say-that is between them and the FDA.  As a not medically trained 
consumer, I think that it is reasonable to rely on the manufacturer's inserts 
for information about the drug (like we do for other prescriptions).

Again, if this is a sincerely held religious belief (that some forms of 
contraception have the possibility of preventing implantation, which would 
equal an abortion, and thus I would be party to the abortion if I paid for 
those drugs) it doesn't matter how crazy you all think it is, or really if you 
think that it is right or wrong.

As for Jean's point about Plan B thickening cervical mucus, yes, it can do 
that, which can potentially impede fertilization, but it can also make the 
lining of the uterine wall too thick, so that a fertilized egg cannot implant.  
Even a woman with poor cervical mucus can get pregnant.  Good cervical mucus 
allows the sperm to survive longer (good for women who may not be tracking 
ovulation).  But, well timed intercourse (even for a woman with poor cervical  
mucus) can lead to pregnancy.

As for the point about the Green's contributions to companies that make morning 
after pills-I  have heard that claim, but I have also heard that those 
investments are through their 401k plans.  Honestly, I don't know if it is true 
or not.  Also, my guess is that most of us aren't up on every company that we 
invest in through our 401k plan.

Finally, on the blood transfusion point-the Court doesn't come anywhere near 
deciding that issue-the dissent makes that clear.


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Johnsen, Dawn Elizabeth
Sent: Wednesday, July 2, 2014 1:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

Here is what the beginning of the NYT article I circulated says about that (and 
you can read the entire article at the link).  Also I recall an NPR story 
within the last year that the labels for Ella and Plan B have been updated in 
Europe to say they act by blocking ovulation and are not effective if ovulation 
already has occurred. My understanding from all this is the labels here in the 
US are out of date from the evidence and I'm not sure what it takes to change 
that (or what the normal practice is for that):


Labels inside every box of morning-after pills, drugs widely used to prevent 
pregnancy
 after sex, say they may work by blocking fertilized eggs from implanting in a 
woman's uterus. Respected medical authorities, including the National 
Institutes of Health and theMayo 
Clinic, have said the same thing on their Web sites.

Such descriptions have become kindling in the fiery debate over 
abortion
 and 
contraception.

Based on the belief that a fertilized egg is a person, some religious groups 
and conservative politicians say disrupting a fertilized egg's ability to 
attach to the uterus is abortion, "the moral equivalent of homicide," as Dr. 
Donna Harrison, who directs research for theAmerican Association of Pro-life 
Obstetricians and Gynecologists, put it. Mitt 
Romney 
recently called emergency contraceptives "abortive pills." And two former 
Republican presidential candidates, Newt Gingrich and Rick Santorum, have made 
similar statements.

But an examination by The New York Times has found that the federally approved 
labels and medical Web sites do not reflect what the science shows. Studies 
have not established that emergency contraceptive pills prevent fertilized eggs 
from implanting in the womb, leading scientists say. Rather, the pills delay 
ovulation, the release of eggs from ovaries that occurs before eggs are 
fertilized, and some pills also thicken cervical mucus so sperm have trouble 
swimming.

It turns out that the politically charged debate over morning-after pills and 
abortion, a divisive issue in this election year, is probably rooted in 
outdated or incorrect scientific guesses about how the pills work. Because they 
block creation of fertilized eggs, they would not meet abortion opponents' 
definition of abortion-inducing drugs.

Hobby Lobby and discrimination against LGBT persons or couples

[Ira Lupu]

With apologies for self-promotion, I suggest that Michael Peabody or others
interested in his question about Hobby Lobby, and discrimination against
LGBT persons or couples, might be interested in this post by Bob Tuttle and
me: http://berkleycenter.georgetown.edu/rfp/blog/hobby-lobby-in-the-long-run

See especially the penultimate paragraph.

-- 
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.

RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Johnsen, Dawn Elizabeth]

Here is what the beginning of the NYT article I circulated says about that (and 
you can read the entire article at the link).  Also I recall an NPR story 
within the last year that the labels for Ella and Plan B have been updated in 
Europe to say they act by blocking ovulation and are not effective if ovulation 
already has occurred. My understanding from all this is the labels here in the 
US are out of date from the evidence and I'm not sure what it takes to change 
that (or what the normal practice is for that):


Labels inside every box of morning-after pills, drugs widely used to prevent 
pregnancy
 after sex, say they may work by blocking fertilized eggs from implanting in a 
woman's uterus. Respected medical authorities, including the National 
Institutes of Health and theMayo 
Clinic, have said the same thing on their Web sites.

Such descriptions have become kindling in the fiery debate over 
abortion
 and 
contraception.

Based on the belief that a fertilized egg is a person, some religious groups 
and conservative politicians say disrupting a fertilized egg's ability to 
attach to the uterus is abortion, "the moral equivalent of homicide," as Dr. 
Donna Harrison, who directs research for theAmerican Association of Pro-life 
Obstetricians and Gynecologists, put it. Mitt 
Romney 
recently called emergency contraceptives "abortive pills." And two former 
Republican presidential candidates, Newt Gingrich and Rick Santorum, have made 
similar statements.

But an examination by The New York Times has found that the federally approved 
labels and medical Web sites do not reflect what the science shows. Studies 
have not established that emergency contraceptive pills prevent fertilized eggs 
from implanting in the womb, leading scientists say. Rather, the pills delay 
ovulation, the release of eggs from ovaries that occurs before eggs are 
fertilized, and some pills also thicken cervical mucus so sperm have trouble 
swimming.

It turns out that the politically charged debate over morning-after pills and 
abortion, a divisive issue in this election year, is probably rooted in 
outdated or incorrect scientific guesses about how the pills work. Because they 
block creation of fertilized eggs, they would not meet abortion opponents' 
definition of abortion-inducing drugs. In contrast, 
RU-486,
 a medication prescribed for terminating pregnancies, destroys implanted 
embryos.

The notion that morning-after pills prevent eggs from implanting stems from the 
Food and Drug Administration's decision during the drug-approval process to 
mention that possibility on the label - despite lack of scientific proof, 
scientists say, and objections by the manufacturer of Plan 
B, the pill on the market the longest. Leading 
scientists say studies since then provide strong evidence that Plan B does not 
prevent implantation, and no proof that a newer type of pill, 
Ella, does.



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Tessa Dysart
Sent: Wednesday, July 02, 2014 1:33 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

But IUDs do change the uterine lining, 
http://www.webmd.com/sex/birth-control/intrauterine-device-iud-for-birth-control,
 raising the question for some people as to whether they can act to prevent 
implantation, assuming fertilization occurs.

As for Plan B & Ella, the websites for both products contain documents that do 
say that they may work to prevent implantation--Ella (see p. 12:  
https://pharma.afaxys.com/afaxys/assets/pdf/ella_FPI.pdf); Plan B (click on 
"How Plan B Works" http://www.planbonestep.com/faqs.aspx).

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Johnsen, Dawn Elizabeth
Sent: Wednesday, July 2, 2014 1:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

Below are some sources that may be of interest regarding what we know about how 
these forms of contraception actually work.  Clearly some uncertainty, due to 
difficulties of testing and great difficulties of proving a negative (that ella 
and IUDs never can work

Re: How Far Does Hobby Lobby Decision Potentially Reach?

[Jean Dudley]

On Jul 2, 2014, at 10:33 AM, Tessa Dysart  wrote:

> But IUDs do change the uterine lining, 
> http://www.webmd.com/sex/birth-control/intrauterine-device-iud-for-birth-control,
>  raising the question for some people as to whether they can act to prevent 
> implantation, assuming fertilization occurs. 
>  
> As for Plan B & Ella, the websites for both products contain documents that 
> do say that they may work to prevent implantation--Ella (see p. 12: 
> https://pharma.afaxys.com/afaxys/assets/pdf/ella_FPI.pdf); Plan B (click on 
> “How Plan B Works” http://www.planbonestep.com/faqs.aspx).

One of the URLs that Dawn Johnson provided calls into question the information 
on those very sites;  
http://www.nytimes.com/2012/06/06/health/research/morning-after-pills-dont-block-implantation-science-suggests.html?_r=0

As of 2012, what exactly Ella does is up for question.  Plan B, well, it delays 
ovulation, and (Ick trigger warning!) causes cervical mucus to thicken, 
impeding sperm from reaching the ovum. But of course now the Green family has a 
supreme court pass to ignore this fact, and still make contributions to 
companies that make morning after pills and IUDs, and possibly get monetary 
dividends from said contributions.  

Jean
“Liar!  LIAR! I’m NOT a witch, I’m your WIFE!”
—Valerie, wife of Miracle Max, Princess Bride. ___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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.

Re: Hobby Lobby Question

[Scarberry, Mark]

Yes, it is a statutory issue, and perhaps this is best seen as analogous. 
Congress did import to some degree constitutional analysis, which could 
strengthen the analogy. Also, a conclusion that a person's religious beliefs 
are not sincere could itself raise constitutional issues (though I don't recall 
whether the draft exemption cases treated the determination of sincerity as 
raising First Am issues).

I don't believe that questions of constitutional fact are removed from jury 
consideration; instead, where such an analysis is used, the courts simply are 
not deferential to juries' conclusions of fact that would restrict 
constitutional rights.

Mark

Sent from my iPad

On Jul 2, 2014, at 6:34 AM, "Vance R. Koven" 
mailto:vrko...@gmail.com>> wrote:

I assume that the use of quotes around "constitutional fact" is meant to 
highlight that the phrase is used as an analogy in this situation, which is 
governed by a statute and not the Constitution. But partly for that reason, I 
think the danger of a jury's refusal to follow a proper instruction on the 
irrelevance of a belief's rationality to its sincerity is not likely to be very 
significant (since firstly, juries don't usually ignore a judge's instructions, 
and secondly, a court can also enter a JNOV if the jury has obviously gotten it 
wrong). If the determination of sincerity is left to courts as some kind of 
"über-fact" then I think we really do tread dangerous ground, since that 
determination will too often be made on hidden policy agendas, for 
administrative convenience, or other factors that we really don't want to 
impinge on religious liberty, to say nothing of investing the courts in 
determining issues of religion that the Constitution forbids them to do.


On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
Maybe this is a "constitutional fact," like NY Times actual malice. We need to 
be careful that a trier of fact does not conclude that a party isn't sincere 
just because the trier of fact thinks the belief is so obviously wrong that a 
reasonable person couldn't believe it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 1, 2014, at 8:30 AM, "Vance R. Koven" 
mailto:vrko...@gmail.com>> wrote:

I have (perhaps incorrectly) assumed that when the Court says *it* should not 
get involved in judging the sincerity of a religious belief, it is expressing 
the proper division of labor between a court and the finder of fact. It should 
be up to the jury (or the court wearing a fact-finder hat) to decide whether 
the belief is sincerely held or not. A trial court can easily enough instruct a 
jury to disregard whether they think the religious belief is kooky; but it's 
perfectly acceptable based on the credibility of the witnesses and direct and 
circumstantial evidence for a jury to ascertain whether the claimed religious 
belief is real or bogus.

I have often suspected that doctrine in religious liberty cases has become 
quite twisted over time by courts' reluctance to let juries do what they're 
supposed to do.


On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer 
mailto:artspit...@gmail.com>> wrote:
I appreciate Steve's response, which I think demonstrates that he is precisely 
rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' 
beliefs.  The plaintiffs say that their religious beliefs prohibit complicity 
with evil, and that signing a contract that makes available certain chemicals 
or devices to others amounts to complicity with evil, because of the use to 
which such chemicals or devices are most likely to be put (terminating what 
plaintiffs believe is a human life).

If a court should not accept that assertion "without inquiry," then what 
inquiry is it supposed to make?

Can a court evaluate and reject the religious belief that "complicity with evil 
is sinful"?

Can a court evaluate and reject the religious belief that "terminating a human 
life is evil"?

Can a court evaluate and reject the religious belief that "morning-after pills 
terminate a human life"?

Can a court evaluate and reject the religious belief that "providing the means 
for a person to obtain a chemical or device whose principal purpose is to 
terminate a human life, and that is likely to be used for that purpose, counts 
as complicity in terminating a human life"?

Is there some other inquiry the court should be making that I'm missing?

Art Spitzer
PS - My questions should not be taken to imply that I necessarily agree with 
the majority opinion (not that anyone cares), and they certainly do not 
represent the views of my employer.



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--
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Boston, MA USA
vrko...@world.std.com
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Religionlaw@lists.ucla.edu
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RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Tessa Dysart]

But IUDs do change the uterine lining, 
http://www.webmd.com/sex/birth-control/intrauterine-device-iud-for-birth-control,
 raising the question for some people as to whether they can act to prevent 
implantation, assuming fertilization occurs.

As for Plan B & Ella, the websites for both products contain documents that do 
say that they may work to prevent implantation--Ella (see p. 12:  
https://pharma.afaxys.com/afaxys/assets/pdf/ella_FPI.pdf); Plan B (click on 
"How Plan B Works" http://www.planbonestep.com/faqs.aspx).

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Johnsen, Dawn Elizabeth
Sent: Wednesday, July 2, 2014 1:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: How Far Does Hobby Lobby Decision Potentially Reach?

Below are some sources that may be of interest regarding what we know about how 
these forms of contraception actually work.  Clearly some uncertainty, due to 
difficulties of testing and great difficulties of proving a negative (that ella 
and IUDs never can work post-fertilization). But the primary mechanisms of 
action (how they usually work) clearly are not what anyone believes is an 
abortion - so the overall effect of making them available is to reduce the 
number of abortions (by anyone's definition, not just the scientific/medical 
definition) if you take into account pregnancies prevented.  That's especially 
the case because IUDs, which again almost always work by preventing 
fertilization (and perhaps always, as long as the IUD was implanted before 
intercourse, though again, hard to prove a negative) are extremely effective 
but very costly and for that reason used less than women would like to use them 
(making insurance particularly helpful, again in reducing the number of 
abortions by any definition). The hormonal IUD is 45 times more effective than 
oral contraceptives and 90 times more effective than male condoms based on 
typical use, as described in the first source (an amicus I coauthored with 
Walter Dellinger and O'Melveny for the Guttmacher Institute).  Also, I've added 
at end a link to my scotusblog post on the case.  Best, Dawn

http://www.guttmacher.org/media/guttmacher_scotus_amicus_brief.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/10/13-354-BRIEF-OF-AMICI-CURIAE-PHYSICIANS-FOR-REPRODUCTIVE-HEALTH-et-alpdf

http://www.nytimes.com/2012/06/06/health/research/morning-after-pills-dont-block-implantation-science-suggests.html?_r=0

http://boingboing.net/2014/04/19/hobby-lobby-iuds-and-the-fac.html

http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html

http://www.guttmacher.org/media/guttmacher_scotus_amicus_brief.pdf



http://www.scotusblog.com/2014/07/hobby-lobby-symposium-corporations-who-worship-1-women-who-work-0/





From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Wednesday, July 02, 2014 12:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: How Far Does Hobby Lobby Decision Potentially Reach?


On Jul 2, 2014, at 9:24 AM, Michael Peabody 
mailto:peabody...@gmail.com>> wrote:

(and indeed there's no
scientific consensus as to whether the contraception causes abortion)

Problem with this sentence on two levels:  First, contraception is a pretty 
broad term, and includes things like abstinence, barriers, hormone therapy.  
Literally defined, contraception prevents or impedes conception.  Abortion, on 
the other hand is medically defined as the premature exit of the product/s of 
conception.  Abortion can be induced or spontaneous.  BTW, about 1/2 of all 
conceptions are aborted spontaneously, and if one believes it was God's will, 
then that makes one's God the busiest abortion provider in the universe.

As for the claim that there's no scientific consensus as to whether "the 
contraception" (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes abortion, 
that's because it's damn hard to conduct ethical, empirical tests whether or 
not a zygote was prevented from implanting in the uterine wall tissue, or if it 
was ejected during induced menses. Remember, there can be no consensus unless 
there are multiple, peer reviewed experiments under rigorous scientific 
processes.  Not many women are willing to have their menstrual effluvia 
collected for scientific examination.  Not many scientists think it important 
enough to find out, either. Not many sources of funding for any kind of 
scientific research of any kind, much less something so female-centric.

Carry on.  I'm just providing some uterine perspective here.
Jean.
TMI? Yeah.  Deal with it.


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To post, 

Re: How Far Does Hobby Lobby Decision Potentially Reach?

[Ira Lupu]

Michael Peabody asks this: "Certainly a closely-held corporation with 5,000
employees might object
(under this decision I no longer need to qualify this by saying that
the owners do the act since the will of the corporation and owners are
one and the same, right?) to directly providing same-sex couples with
federally mandated benefits, right?
​"

The answer is of course such a company might object under RFRA.  As​ of
now, discrimination against LGBT people does not violate federal law, but
it may soon enough.  But the government would then have expressed a strong
-- I would say compelling -- interest in barring such discrimination, and
what (under Hobby Lobby) "less restrictive means" are there for the
government to get those benefits to those couples?  Must the government
itself pay?  Those claims someday will be brought, and they will lose.
 With apologies for self-promotion, see the penultimate paragraph of this
blog post:
http://berkleycenter.georgetown.edu/rfp/blog/hobby-lobby-in-the-long-run
​.​


On Wed, Jul 2, 2014 at 12:24 PM, Michael Peabody 
wrote:

> Good morning,
>
> In reviewing the Hobby Lobby decision, and particularly its extent, I
> can't help but wonder how far this decision goes.  While much of the
> focus is on the contraceptives themselves, it seems like Hobby Lobby
> may be to particular contraceptives as Employment Div. v. Smith was to
> peyote.
>
> While the majority claims the decision is narrow, the circumstances
> seem very broad. Here there is a closely-held corporation with 13,000
> employees whose owners object to providing insurance that makes
> available contraception to be prescribed by a physician and where the
> actual usage will never be known by the owner (and indeed there's no
> scientific consensus as to whether the contraception causes abortion)
> as it is protected by HIPAA.  Anything within that range would seem to
> be fair game.
>
> Certainly a closely-held corporation with 5,000 employees might object
> (under this decision I no longer need to qualify this by saying that
> the owners do the act since the will of the corporation and owners are
> one and the same, right?) to directly providing same-sex couples with
> federally mandated benefits, right?
>
> And then we enter what appear to be uncharted waters where you have a
> potential Title VII case brought by a religious employee (of Religion
> A) who claims that she is being discriminated against by the religious
> secular corporation (of Religion B) and the EEOC takes the case as
> what we could consider to be a co-plaintiff.  Could the corporation
> defend itself against the EEOC by claiming RFRA? Would the Corporation
> defeat the Individual employee?
>
> Apparently the Circuits are split in whether RFRA can be used a
> defense in private suits (see the following Virginia Law Review note
> by Shruti Chaganti -
> http://www.virginialawreview.org/sites/virginialawreview.org/files/343.pdf
> ), and I'm wondering if Hobby Lobby will be used the same way.
>
> Any thoughts would be greatly appreciated.
>
> Michael Peabody, Esq.
> Editor
> ReligiousLiberty.TV
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>



-- 
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
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Re: How Far Does Hobby Lobby Decision Potentially Reach?

[Jean Dudley]

On Jul 2, 2014, at 10:17 AM, Tessa Dysart  wrote:

> But aren’t the forms of contraception that Hobby Lobby objects to 
> specifically marketed as contraception that can prevent implantation? I know 
> that Plan B is—whether IUDs prevent implantation is  perhaps a little more 
> controversial.   

Marketing isn’t always based on scientific fact—especially when scientific 
facts are lacking. I suspect that they are maximizing on one aspect of how Plan 
B works.  Just ignore that man behind the curtain…

> For people who believe that life begins at fertilization, a form of 
> contraception that prevents implantation is a problem.

In the immortal words of The Bard, “Ah, therein lies the rub…” Yes, it is a 
problem—as is the belief that receiving a lifesaving blood transfusion is the 
same as “eating blood”—and yet Jehovah’s Witness employers must still provide 
insurance that covers said “evil”.  Why did Alito give a pass to one, but not 
the other?  I’m jaded enough on matters of female equality to believe that 
someday Alito or someone he loves will need a blood transfusion.  He, of 
course, will never have to deal with a life-threatening pregnancy in his own 
person.  

Jean. 
“You say feminazi like it’s a bad thing!” 
> 
> Tessa
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
> Sent: Wednesday, July 2, 2014 12:43 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: How Far Does Hobby Lobby Decision Potentially Reach?
>  
>  
> On Jul 2, 2014, at 9:24 AM, Michael Peabody  wrote:
> 
> 
> (and indeed there's no
> scientific consensus as to whether the contraception causes abortion)
>  
> Problem with this sentence on two levels:  First, contraception is a pretty 
> broad term, and includes things like abstinence, barriers, hormone therapy.  
> Literally defined, contraception prevents or impedes conception.  Abortion, 
> on the other hand is medically defined as the premature exit of the product/s 
> of conception.  Abortion can be induced or spontaneous.  BTW, about 1/2 of 
> all conceptions are aborted spontaneously, and if one believes it was God’s 
> will, then that makes one’s God the busiest abortion provider in the 
> universe.  
>  
> As for the claim that there’s no scientific consensus as to whether “the 
> contraception” (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes 
> abortion, that’s because it’s damn hard to conduct ethical, empirical tests 
> whether or not a zygote was prevented from implanting in the uterine wall 
> tissue, or if it was ejected during induced menses. Remember, there can be no 
> consensus unless there are multiple, peer reviewed experiments under rigorous 
> scientific processes.  Not many women are willing to have their menstrual 
> effluvia collected for scientific examination.  Not many scientists think it 
> important enough to find out, either. Not many sources of funding for any 
> kind of scientific research of any kind, much less something so 
> female-centric. 
>  
> Carry on.  I’m just providing some uterine perspective here. 
> Jean. 
> TMI? Yeah.  Deal with it. 
>  
> No virus found in this message.
> Checked by AVG - www.avg.com
> Version: 2013.0.3485 / Virus Database: 3955/7691 - Release Date: 06/17/14
> Internal Virus Database is out of date.
> ___
> 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.

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RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Johnsen, Dawn Elizabeth]

Below are some sources that may be of interest regarding what we know about how 
these forms of contraception actually work.  Clearly some uncertainty, due to 
difficulties of testing and great difficulties of proving a negative (that ella 
and IUDs never can work post-fertilization). But the primary mechanisms of 
action (how they usually work) clearly are not what anyone believes is an 
abortion - so the overall effect of making them available is to reduce the 
number of abortions (by anyone's definition, not just the scientific/medical 
definition) if you take into account pregnancies prevented.  That's especially 
the case because IUDs, which again almost always work by preventing 
fertilization (and perhaps always, as long as the IUD was implanted before 
intercourse, though again, hard to prove a negative) are extremely effective 
but very costly and for that reason used less than women would like to use them 
(making insurance particularly helpful, again in reducing the number of 
abortions by any definition). The hormonal IUD is 45 times more effective than 
oral contraceptives and 90 times more effective than male condoms based on 
typical use, as described in the first source (an amicus I coauthored with 
Walter Dellinger and O'Melveny for the Guttmacher Institute).  Also, I've added 
at end a link to my scotusblog post on the case.  Best, Dawn

http://www.guttmacher.org/media/guttmacher_scotus_amicus_brief.pdf

http://sblog.s3.amazonaws.com/wp-content/uploads/2013/10/13-354-BRIEF-OF-AMICI-CURIAE-PHYSICIANS-FOR-REPRODUCTIVE-HEALTH-et-alpdf

http://www.nytimes.com/2012/06/06/health/research/morning-after-pills-dont-block-implantation-science-suggests.html?_r=0

http://boingboing.net/2014/04/19/hobby-lobby-iuds-and-the-fac.html

http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html

http://www.guttmacher.org/media/guttmacher_scotus_amicus_brief.pdf



http://www.scotusblog.com/2014/07/hobby-lobby-symposium-corporations-who-worship-1-women-who-work-0/





From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Wednesday, July 02, 2014 12:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: How Far Does Hobby Lobby Decision Potentially Reach?


On Jul 2, 2014, at 9:24 AM, Michael Peabody 
mailto:peabody...@gmail.com>> wrote:


(and indeed there's no
scientific consensus as to whether the contraception causes abortion)

Problem with this sentence on two levels:  First, contraception is a pretty 
broad term, and includes things like abstinence, barriers, hormone therapy.  
Literally defined, contraception prevents or impedes conception.  Abortion, on 
the other hand is medically defined as the premature exit of the product/s of 
conception.  Abortion can be induced or spontaneous.  BTW, about 1/2 of all 
conceptions are aborted spontaneously, and if one believes it was God's will, 
then that makes one's God the busiest abortion provider in the universe.

As for the claim that there's no scientific consensus as to whether "the 
contraception" (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes abortion, 
that's because it's damn hard to conduct ethical, empirical tests whether or 
not a zygote was prevented from implanting in the uterine wall tissue, or if it 
was ejected during induced menses. Remember, there can be no consensus unless 
there are multiple, peer reviewed experiments under rigorous scientific 
processes.  Not many women are willing to have their menstrual effluvia 
collected for scientific examination.  Not many scientists think it important 
enough to find out, either. Not many sources of funding for any kind of 
scientific research of any kind, much less something so female-centric.

Carry on.  I'm just providing some uterine perspective here.
Jean.
TMI? Yeah.  Deal with it.

___
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RE: How Far Does Hobby Lobby Decision Potentially Reach?

[Tessa Dysart]

But aren't the forms of contraception that Hobby Lobby objects to specifically 
marketed as contraception that can prevent implantation? I know that Plan B 
is-whether IUDs prevent implantation is  perhaps a little more controversial.   
For people who believe that life begins at fertilization, a form of 
contraception that prevents implantation is a problem.

Tessa

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley
Sent: Wednesday, July 2, 2014 12:43 PM
To: Law & Religion issues for Law Academics
Subject: Re: How Far Does Hobby Lobby Decision Potentially Reach?


On Jul 2, 2014, at 9:24 AM, Michael Peabody 
mailto:peabody...@gmail.com>> wrote:


(and indeed there's no
scientific consensus as to whether the contraception causes abortion)

Problem with this sentence on two levels:  First, contraception is a pretty 
broad term, and includes things like abstinence, barriers, hormone therapy.  
Literally defined, contraception prevents or impedes conception.  Abortion, on 
the other hand is medically defined as the premature exit of the product/s of 
conception.  Abortion can be induced or spontaneous.  BTW, about 1/2 of all 
conceptions are aborted spontaneously, and if one believes it was God's will, 
then that makes one's God the busiest abortion provider in the universe.

As for the claim that there's no scientific consensus as to whether "the 
contraception" (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes abortion, 
that's because it's damn hard to conduct ethical, empirical tests whether or 
not a zygote was prevented from implanting in the uterine wall tissue, or if it 
was ejected during induced menses. Remember, there can be no consensus unless 
there are multiple, peer reviewed experiments under rigorous scientific 
processes.  Not many women are willing to have their menstrual effluvia 
collected for scientific examination.  Not many scientists think it important 
enough to find out, either. Not many sources of funding for any kind of 
scientific research of any kind, much less something so female-centric.

Carry on.  I'm just providing some uterine perspective here.
Jean.
TMI? Yeah.  Deal with it.


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RE: Hobby Lobby Question

[Brian Landsberg]

I have long thought, as Sandy does, that Naim v. Naim was a disgrace.  It is 
hardly proof that Brown “did absolutely nothing,” though.  Even Gerald 
Rosenberg’s flawed analysis of Brown does not go that far.  Looking more 
closely at Naim, it seems somewhat less outrageous that the Court waited for 
better cases, which ultimately came in McClaughlin and Loving.  Naim was a 
Chinese citizen who had married a white woman in North Carolina.  She sued for 
divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s 
eligibility for U.S. citizenship.  Even if the Virginia law was held 
unconstitutional, the lower court could still have granted an annulment or 
divorce.  The husband’s lawyer did not argue that the racial classification was 
unreasonable, according to an article in 42 American Journal of Legal History, 
119.  Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably 
reflecting their fear that the post-Brown slogan “integration means 
intermarriage” would gain added credence and endanger compliance with Brown.  
None of this excuses the Court for ducking the issue, but perhaps it helps 
explain why the Court waited for a prosecution of an interracial couple before 
deciding the issue.  For a good overview, see Peggy Pascoe, What Comes 
Naturally: Miscegenation Law and the Making of Race in America.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 7:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

Art raises an interesting point.  For better and worse, Brown in 1954 did 
absolutely nothing, and Brown II settled for the (in)famous “all deliberate 
speed.”  It was the Civil Rights Movement, Lyndon Johnson, and Congress that 
fundamentally changed things, not the Supreme Court that in 1956 engaged in the 
disgraceful evasion of Naim v. Naim.  I’m not sure how much credit Roe should 
get for reforming American abortion law.  That’s the great question raised by 
Gerry Rosenberg’s book.  Same-sex marriage is quite unlike these, incidentally, 
in that the Court can, should it wish to, make it a possibility nation-wide 
simply by the “performative utterance” of declaring that such marriages can’t 
be barred by states.  There will, even in Oklahoma and North Dakota, be 
ministers willing to preside and civil servants who will feel obligated to sell 
the marriage licenses.  It’s far less complicated, in terms of changing the 
behavior of thousands upon thousands low-visibility officials, than school 
segregation.

But I also want to emphasize that the utter cynicism is to suggest, while 
maintaining an iniquitous status quo, that the answer lies in Congress.  The 
strongest argument for judicial intervention is indeed the argument of John 
Hart Ely that it is foolish to consign unpopular groups to legislative mercy.  
That was, incidentally, what was so offensive about Frankfurter in 1962 saying 
that the folks in Memphis should “sear the consciences” of the Tennessee 
legislators that never in a million years would have voluntarily given up their 
illegitimate power as a result of malapportionment.  “Power corrupts,” as John 
P. Roche once put it, “and the prospect of losing power corrupts absolutely.”  
So I don’t know how much we disagree after all.

sandy

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, June 30, 2014 8:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

With respect, I think Sandy's response ("I think that it's utter cynicism to 
suggest possibilities that are politically impossible. The life of the law 
should be experience and not arid logical possibility") is unacceptable.  It 
was politically impossible to get southern states to integrate their public 
schools in 1954.  Did that make it constitutionally unnecessary?  It was 
politically impossible to get many states to allow abortions in 1973.  But it 
happened.  It is politically impossible to get Oklahoma (or Congress) to agree 
to same-sex marriage.  Does that make it constitutionally unnecessary?  "The 
life of the law should be experience," and experience teaches that the nation 
obeys the law.  At least mostly, and at least so far.  And Congress can amend 
RFRA if The People don't like it.

Art Spitzer

Warning: this message is subject to monitoring by the NSA.

On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:
I think that it's utter cynicism to suggest possibilities that are politically 
impossible. The life of the law should be experience and not arid logical 
possibility.

Sandy

Sent from my iPhone

On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
With regard to Sandy’s comment that there isn’t a chance in hell

Re: How Far Does Hobby Lobby Decision Potentially Reach?

[Jean Dudley]

We’re dealing with some pretty icky stuff, here;  zygotes, embryos, fetuses, 
menstruation, uterine tissues…but if decisions that affect those icky things 
are made, we really should be willing to speak about them. 

Now what gets me is there’s an exemption for blood transfusions and 
vaccines—equally valid religious exemptions exist for those in that same 
statement if I recall.  It seems to me that Justice Alito gets to pick and 
choose which scientific facts are ignored based on his own beliefs.  

Jean
“Now I’m not stupid but I can’t understand/ Why she walks like a woman but 
talks like a man…” 
(From “Lola”, by The Kinks)


On Jul 2, 2014, at 9:54 AM, Michael Peabody  wrote:

> Thanks Jean - I was trying to avoid getting into a discussion as to
> the particulars of the contraception (which is the vehicle for this
> particular case) by relying on Justice Alito's statement on page 9,
> footnote 7, which dismissed the dispute over what the drugs actually
> do (distinguishing between how the company and regulators viewed the
> drugs).  In other words, if the company owners believe it causes
> abortion, or the company owners believe that wearing blue hats on a
> Monday attracts evil spirits, the Court would apply the same analysis.
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
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Re: How Far Does Hobby Lobby Decision Potentially Reach?

[Michael Peabody]

Thanks Jean - I was trying to avoid getting into a discussion as to
the particulars of the contraception (which is the vehicle for this
particular case) by relying on Justice Alito's statement on page 9,
footnote 7, which dismissed the dispute over what the drugs actually
do (distinguishing between how the company and regulators viewed the
drugs).  In other words, if the company owners believe it causes
abortion, or the company owners believe that wearing blue hats on a
Monday attracts evil spirits, the Court would apply the same analysis.
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Re: How Far Does Hobby Lobby Decision Potentially Reach?

[Jean Dudley]

On Jul 2, 2014, at 9:24 AM, Michael Peabody  wrote:

> (and indeed there's no
> scientific consensus as to whether the contraception causes abortion)

Problem with this sentence on two levels:  First, contraception is a pretty 
broad term, and includes things like abstinence, barriers, hormone therapy.  
Literally defined, contraception prevents or impedes conception.  Abortion, on 
the other hand is medically defined as the premature exit of the product/s of 
conception.  Abortion can be induced or spontaneous.  BTW, about 1/2 of all 
conceptions are aborted spontaneously, and if one believes it was God’s will, 
then that makes one’s God the busiest abortion provider in the universe.  

As for the claim that there’s no scientific consensus as to whether “the 
contraception” (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes abortion, 
that’s because it’s damn hard to conduct ethical, empirical tests whether or 
not a zygote was prevented from implanting in the uterine wall tissue, or if it 
was ejected during induced menses. Remember, there can be no consensus unless 
there are multiple, peer reviewed experiments under rigorous scientific 
processes.  Not many women are willing to have their menstrual effluvia 
collected for scientific examination.  Not many scientists think it important 
enough to find out, either. Not many sources of funding for any kind of 
scientific research of any kind, much less something so female-centric. 

Carry on.  I’m just providing some uterine perspective here. 
Jean. 
TMI? Yeah.  Deal with it. 

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Degrees of complicity

[Jean Dudley]

On Jul 2, 2014, at 7:45 AM, Steven Jamar  wrote:

> How about owning stock in companies that make and sell contraceptives?  They 
> had to sign a contract to do that.  

Good question, Steve:  Let’s narrow this down a bit—remember, HL only objects 
to “morning-after” contraception and IUDs. And yes, HL made investments in 
those companies that made, among other things, both “morning after” pills and 
IUDs.  Whether or not they received any dividends really isn’t germane, I 
think—the fact that they gave money makes them complicit and nullifies a claim 
of religious sincerity to my mind.  But if they do accept dividends wouldn’t it 
compound complicity? 

Further, they pay money for goods made in China, a country that still routinely 
forces women to abort in a state backed population control effort, even though 
China says they don’t do that.  How many steps removed does it have to be to 
not count as complicity? 

Can HL have its exemption revoked and fines imposed because their “sincerely 
held religious belief” is a moral sham?  If the SCOTUS doesn’t scrutinize how 
“sincere” a religious belief is, but accepts on prima facia that the belief is 
sincere, don’t they have an obligation to vacate the exemption once similar 
complicity in said “evil” is proven? 

This decision was a huge game changer;  previously other folks with sincerely 
held religious beliefs had to content themselves with not doing “evil” 
themselves, but not denying said “evil” to others under their employment.  Now 
a group of people can withhold medically necessary and legally mandated 
treatment options.  If you’re against blood transfusions, don’t have one, but 
don’t block others from having them.  But they can now opt out of providing 
Plan B or IUDS to women who need them medically even though those women don’t 
agree that they are abortive.  The fact that medical science doesn’t think 
they’re abortive doesn’t matter.  Religious belief once again trumps science 
and law.  How sad. 

Once again, I am not a lawyer.  I just happen to have a (non-functioning) 
uterus. 
Jean


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How Far Does Hobby Lobby Decision Potentially Reach?

[Michael Peabody]

Good morning,

In reviewing the Hobby Lobby decision, and particularly its extent, I
can't help but wonder how far this decision goes.  While much of the
focus is on the contraceptives themselves, it seems like Hobby Lobby
may be to particular contraceptives as Employment Div. v. Smith was to
peyote.

While the majority claims the decision is narrow, the circumstances
seem very broad. Here there is a closely-held corporation with 13,000
employees whose owners object to providing insurance that makes
available contraception to be prescribed by a physician and where the
actual usage will never be known by the owner (and indeed there's no
scientific consensus as to whether the contraception causes abortion)
as it is protected by HIPAA.  Anything within that range would seem to
be fair game.

Certainly a closely-held corporation with 5,000 employees might object
(under this decision I no longer need to qualify this by saying that
the owners do the act since the will of the corporation and owners are
one and the same, right?) to directly providing same-sex couples with
federally mandated benefits, right?

And then we enter what appear to be uncharted waters where you have a
potential Title VII case brought by a religious employee (of Religion
A) who claims that she is being discriminated against by the religious
secular corporation (of Religion B) and the EEOC takes the case as
what we could consider to be a co-plaintiff.  Could the corporation
defend itself against the EEOC by claiming RFRA? Would the Corporation
defeat the Individual employee?

Apparently the Circuits are split in whether RFRA can be used a
defense in private suits (see the following Virginia Law Review note
by Shruti Chaganti -
http://www.virginialawreview.org/sites/virginialawreview.org/files/343.pdf
), and I'm wondering if Hobby Lobby will be used the same way.

Any thoughts would be greatly appreciated.

Michael Peabody, Esq.
Editor
ReligiousLiberty.TV
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Re: Attenuation

[Perry Dane]

 

Steve Jamar wrote: 

> [1] How about owning stock in companies that
make and sell contraceptives? They had to sign a contract to do that. 
>

> [2] The distance between doing the improper thing -- selling, paying
for, using contraceptives -- and buying general health insurance with
coverages mandated by the government is attenuated sufficiently for me.
However, I understand how one can rhetorically manipulate these matters
as Prof. Dane (and I) have done. And that is fully fair game and 5
justices agreed with one rethorical approach and 4 did not. 5 thought
religion under RFRA should trump the other values (as a matter of
statutory interpretation); 4 did not.

Point 1 simply confirms that we
all draw have to draw lines of causation and moral responsibility
somewhere, and those different lines will be embedded in a variety of
discourses and grounded in a variety of different assumptions. 

As to
point 2, I don't think that "5 justices agreed" with Hobby Lobby's
conclusions about causation and moral responsibility. They simply, and
correctly, accepted them as religious views. It's as if Hobby Lobby had
just said, "for religious reasons, we can't sign a document that alludes
to 'Plan B, Ella, or intrauterine devices.' It's just something about
those words."

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RE: Attenuation

[Berg, Thomas C.]

And in the standard complicity-with-evil analyses, including religious ones, 
the degree of connection that's permissible is affected by the perceived 
gravity of the harm, which as Marty notes is a religious determination.  
Gravity of the harm, for example, is part of the "material cooperation" 
analysis in Catholic thought, which essentially involves a proportionality 
test.  So even the reasoning "this degree of connection is too much" is a 
product, in part, of the religious determination.  I think if people shared the 
Greens' belief that the emergency contraceptives kill a human person, they'd be 
more sympathetic to the claim.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Perry Dane [d...@crab.rutgers.edu]
Sent: Wednesday, July 02, 2014 10:20 AM
To: Marty Lederman
Cc: Law & Religion issues for Law Academics
Subject: Re: Attenuation


Marty,

I would define religious reasoning as reasoning within a religious discourse or 
tradition used by religious people to reach religiously-significant 
conclusions.  Religious reasoning need not be metaphysical or transcendent or 
explicitly spiritual.  And it can certainly resemble analogous secular 
discourse.  But it is still distinct.

Three observations:

1. Look again at my Jewish separate-plates example.  Rabbinic discussions of 
these sorts of questions rarely involve discussions about "whether God exists, 
whether there's a heaven or a hell, whether God commands a particular thing, or 
whether and when an embryo has a 'soul' or is a 'human life.'"  So I return to 
my question:  Should the prison authorities be heard to argue that the 
connection between the underlying rule against mixing dairy and meat and the 
subsidiary conclusion that those foods must be eaten on separate plates is just 
too "attenuated"?

2. It's a staple of first-year torts that reasoning about proximate cause is 
inextricably intertwined with various policy and other concerns.  And even if 
we disagree with that, and adopt Ernie Weinrib's view that proximate cause 
reasoning is built into the structure of tort law, that would still suggest 
that it is embedded in a specific, constrained, discourse that follows certain 
rules and makes certain very deep assumptions peculiar to that discourse.  That 
would suggest that there exist a whole bunch of constrained discourses about 
notions of causation, responsibility, and the like.  Each of those constrained 
discourses is, explicitly or implicitly, grounded in certain assumptions and 
world-views.  For example, in Peter Singer's thoroughgoing utilitarian 
discourse, each of us has 
a direct affirmative responsibility to try to alleviate famines and other forms 
of suffering around the world, since " if it is in our power to prevent 
something bad from happening, without thereby sacrificing anything of 
comparable moral importance, we ought, morally, to do it."  That is certainly a 
more radical view than that taken by tort law, or by more deontological moral 
discourses, or even by Hobby Lobby.

Now, in the light of all that, it seems to me quite reasonable to assume that 
Hobby Lobby is (however inarticulately) reaching its conclusions about 
causation and responsibility based on forms of reasoning or instinct embedded 
in its own religious assumptions and priorities, though loosely analogous, of 
course, to other forms of reasoning about causation and responsibility.

3. Note that in the Establishment Clause context, we're (usually rightly, I 
think) quite willing to describe certain propositions (such as "creation 
science") as religious even though their proponents claim they are not and in 
fact carefully try to exclude all mention of "whether God exists, whether 
there's a heaven or a hell, whether God commands a particular thing, or whether 
and when an embryo has a 'soul' or is a 'human life.'"

On 07/02/2014 10:32 am, Marty Lederman wrote:

Perry:  I think this is a very important, and contestable, assumption:  "Hobby 
Lobby is using religious reasoning, not secular reasoning" [in determining what 
sort of connection constitutes prohibited "complicity"].  What is the basis for 
that assumption?  In fact, virtually all theological analysis I've ever seen 
about questions of complicity does not consist of what we would ordinarily call 
"religious reasoning" -- such as whether God exists, whether there's a heaven 
or a hell, whether God commands a 

Re: Attenuation

[Perry Dane]

 

Marty, 

I would define religious reasoning as reasoning within a
religious discourse or tradition used by religious people to reach
religiously-significant conclusions. Religious reasoning need not be
metaphysical or transcendent or explicitly spiritual. And it can
certainly resemble analogous secular discourse. But it is still
distinct. 

Three observations: 

1. Look again at my Jewish
separate-plates example. Rabbinic discussions of these sorts of
questions rarely involve discussions about "whether God exists, whether
there's a heaven or a hell, whether God commands a particular thing, or
whether and when an embryo has a 'soul' or is a 'human life.'" So I
return to my question: Should the prison authorities be heard to argue
that the connection between the underlying rule against mixing dairy and
meat and the subsidiary conclusion that those foods must be eaten on
separate plates is just too "attenuated"? 

2. It's a staple of
first-year torts that reasoning about proximate cause is inextricably
intertwined with various policy and other concerns. And even if we
disagree with that, and adopt Ernie Weinrib's view that proximate cause
reasoning is built into the structure of tort law, that would still
suggest that it is embedded in a specific, constrained, discourse that
follows certain rules and makes certain very deep assumptions peculiar
to that discourse. That would suggest that there exist a whole bunch of
constrained discourses about notions of causation, responsibility, and
the like. Each of those constrained discourses is, explicitly or
implicitly, grounded in certain assumptions and world-views. For
example, in Peter Singer's thoroughgoing utilitarian discourse [2], each
of us has a direct affirmative responsibility to try to alleviate
famines and other forms of suffering around the world, since " if it is
in our power to prevent something bad from happening, without thereby
sacrificing anything of comparable moral importance, we ought, morally,
to do it." That is certainly a more radical view than that taken by tort
law, or by more deontological moral discourses, or even by Hobby Lobby.


Now, in the light of all that, it seems to me quite reasonable to
assume that Hobby Lobby is (however inarticulately) reaching _its_
conclusions about causation and responsibility based on forms of
reasoning or instinct embedded in _its_ own religious assumptions and
priorities, though loosely analogous, of course, to other forms of
reasoning about causation and responsibility. 

3. Note that in the
Establishment Clause context, we're (usually rightly, I think) quite
willing to describe certain propositions (such as "creation science") as
religious even though their proponents claim they are not and in fact
carefully try to exclude all mention of "whether God exists, whether
there's a heaven or a hell, whether God commands a particular thing, or
whether and when an embryo has a 'soul' or is a 'human life.'" 

On
07/02/2014 10:32 am, Marty Lederman wrote: 

> Perry: I think this is a
very important, and contestable, assumption: "Hobby Lobby is using
religious reasoning, not secular reasoning" [in determining what sort of
connection constitutes prohibited "complicity"]. What is the basis for
that assumption? In fact, virtually all theological analysis I've ever
seen about questions of complicity does _not _consist of what we would
ordinarily call "religious reasoning" -- such as whether God exists,
whether there's a heaven or a hell, whether God commands a particular
thing, or whether and when an embryo has a "soul" or is a "human life"
-- questions that secular authorities are incapable of or forbidden from
assessing. Instead, that reasoning quite closely resembles the ordinary
sort of reasoning that nonreligious authorities -- academic,
legislative, and judicial -- make all the time about complicity and
responsibility and culpability of "accessories". (Of course, the
exception is that, within the religious assessment, the existence and
importance of the underlying evil -- e.g., prevention of implantation of
a fertilized embryo -- is itself a religious question. I am referring,
instead, to the questions of attenuation/proximate
cause/responsibility/etc.) 
> 
> On Tue, Jul 1, 2014 at 5:47 PM, Perry
Dane  wrote:
> 
>> Steve Jamar writes: "I do
not reject the legitimacy nor the religiousity of the plaintiff's
beliefs. Quite the contrary; I accept them and undertstand them. But I
do not accept that we should accept a complicity with evil claim when it
becomes too attenuated as it is here. The inquiry is attenuation, not
substantive on the sinfulness nor evilness nor "legitimacy" of the
beliefs." 
>> 
>> With all due respect, though, I have always found the
"attenuation" claim the least convincing of the arguments against Hobby
Lobby's position. 
>> 
>> As the majority opinion suggests, and as many
of us have been saying for a long time, Hobby Lobby needs to be
understood as putting on the table two distinct relig

Re: Attenuation

[Steven Jamar]

How about owning stock in companies that make and sell contraceptives?  They 
had to sign a contract to do that.  

The distance between doing the improper thing — selling, paying for, using 
contraceptives — and buying general health insurance with coverages mandated by 
the government is attenuated sufficiently for me.  However, I understand how 
one can rhetorically manipulate these matters as Prof. Dane (and I) have done.  
And that is fully fair game and 5 justices agreed with one rethorical approach 
and 4 did not.  5 thought religion under RFRA should trump the other values (as 
a matter of statutory interpretation); 4 did not.


On Jul 2, 2014, at 10:32 AM, Marty Lederman  wrote:

> Perry:  I think this is a very important, and contestable, assumption:  
> "Hobby Lobby is using religious reasoning, not secular reasoning" [in 
> determining what sort of connection constitutes prohibited "complicity"].  
> What is the basis for that assumption?  In fact, virtually all theological 
> analysis I've ever seen about questions of complicity does not consist of 
> what we would ordinarily call "religious reasoning" -- such as whether God 
> exists, whether there's a heaven or a hell, whether God commands a particular 
> thing, or whether and when an embryo has a "soul" or is a "human life" -- 
> questions that secular authorities are incapable of or forbidden from 
> assessing.  Instead, that reasoning quite closely resembles the ordinary sort 
> of reasoning that nonreligious authorities -- academic, legislative, and 
> judicial -- make all the time about complicity and responsibility and 
> culpability of "accessories".  (Of course, the exception is that, within the 
> religious assessment, the existence and importance of the underlying evil -- 
> e.g., prevention of implantation of a fertilized embryo -- is itself a 
> religious question.  I am referring, instead, to the questions of 
> attenuation/proximate cause/responsibility/etc.)
> 
> 
> On Tue, Jul 1, 2014 at 5:47 PM, Perry Dane  wrote:
> Steve Jamar writes: "I do not reject the legitimacy nor the religiousity 
> of the plaintiff’s beliefs.  Quite the contrary; I accept them and 
> undertstand them.  But I do not accept that we should accept a complicity 
> with evil claim when it becomes too attenuated as it is here.  The inquiry is 
> attenuation, not substantive on the sinfulness nor evilness nor “legitimacy” 
> of the beliefs."
> 
> With all due respect, though, I have always found the "attenuation" claim 
> the least convincing of the arguments against Hobby Lobby's position. 
> 
> As the majority opinion suggests, and as many of us have been saying for 
> a long time, Hobby Lobby needs to be understood as putting on the table two 
> distinct religious claims:  (1) Certain forms of contraception should not be 
> used.  (2) Hobby Lobby and/or its owners are religiously prohibited from 
> signing insurance contracts that cover those same forms of contraception.  Of 
> course, Hobby Lobby has religious reasons taking it from claim (1) to claim 
> (2).  But it's not the business of the secular state to second-guess the 
> quality of that reasoning.  In fact, as far as the secular state is 
> concerned, claim (1) should be essentially irrelevant.  All that really 
> counts is claim (2).
> 
> Imagine an observant Jewish prison inmate who asks for kosher food.  The 
> prison administration tells him, "We're happy to give you kosher food.  We'll 
> also be sure not to give you meat meals and dairy meals within however many 
> hours of each other you think is religiously significant.  But we can't give 
> you separate (or disposable) plates for your meat and dairy meals.  That 
> would just be too expensive or complicated for us to do."  The prisoner 
> responds, "That's not good enough, I'm afraid.  As a matter of Jewish law, 
> hot foot transfers its 'taste' to plates, which in turn transfer the 'taste' 
> to other food served on those plates, even if the plates are thoroughly 
> washed between uses.  So I need separate or disposable plates."  (There are 
> more technicalities that I won't get into.)  The prison administration 
> replies, "That's just silly.  No 'taste' gets transferred.  We understand 
> that you have religious reasons for not eating meat and dairy food together, 
> and we'll grant you that accommodation, but this argument you're making about 
> plates and such is just too attenuated."
> 
>I suspect that most courts, and most of us, would reject this defense of 
> "attenuation."  (This has nothing to do with arguments over compelling 
> interest, less restrictive means, etc.)   Jewish law's conclusion [that (1) a 
> ban on mixing dairy and meat foods entails (2) a ban on using the same dishes 
> for dairy and meat foods] might be wacky from a secular or scientific point 
> of view, but it's not up to the secular state to second-guess that view.  
> Indeed, all the secular state needs to know is that the prisoner

Re: Hobby Lobby Question

[Marty Lederman]

Thankfully, this issue is now beside the point, but just to repeat, the
premise is mistaken:  There are not literally millions of women whose
policies are exempted.  Almost all women in the United States are or soon
will be entitled to cost-free contraceptive coverage in their insurance
plan.


On Tue, Jul 1, 2014 at 8:04 PM, Rick Duncan 
wrote:

> The Court assumed that there is a compelling interest in covering
> contraceptives, even though there are literally millions of women whose
> policies are exempted from the mandate under the ACA. Do we all agree that
> such gross underinclusion is irrelevant to the issue of compelling
> interest?
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> My recent article, *Just Another Brick in the Wall: The Establishment
> Clause as a Heckler's Veto*, is available at SSRN
>
> "And against the constitution I have never raised a storm,It's the
> scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from
> the song, Thomas Muir of Huntershill)
>
>   --
>  *From:* "Scarberry, Mark" 
>
> *To:* Law & Religion issues for Law Academics 
>
> *Sent:* Monday, June 30, 2014 8:03 PM
>
> *Subject:* RE: Hobby Lobby Question
>
> With regard to Sandy’s comment that there isn’t a chance in hell of
> getting funding from Congress to cover these methods of contraception:
>
> Do we agree that a less restrictive means is available for purposes of
> RFRA and (where applicable) constitutional analysis, even if the government
> (including Congress) is for some reason unwilling to use it? The political
> difficulty (or impossibility) of getting agreement on implementing an
> approach does not make it unavailable; it just means that there is no
> consensus on using it. Do we agree on that point?
>
> On the question whether govt funding may be a less restrictive means:
>
> The majority opinion does suggest that the government could be required,
> if it seeks to advance its compelling interest, to incur a cost that is
> small compared to the cost of the entire program. A means of advancing that
> interest that requires the spending of money could be a less restrictive
> means – less restrictive of religious liberty – than a requirement that the
> individual or business incur the cost. See the discussion that begins at
> the top of page 41, and this excerpt from pp. 42-43:
>
> “The most straightforward way of doing this would be for the Government to
> assume the cost of providing the four contraceptives at issue to any women
> who are unable to obtain them under their health-insurance policies due to
> their employers’ religious objections. … It seems likely, however, that the
> cost of providing the forms of contraceptives at issue in these cases (if
> not all FDA-approved contraceptives) would be minor when compared with the
> overall cost of ACA. … If, as HHS tells us, providing all women with
> cost-free access to all FDA-approved methods of contraception is a
> Government interest of the highest order, it is hard to understand HHS’s
> argument that it cannot be required under RFRA to pay anything in order to
> achieve this important goal.
>  “We do not doubt that cost may be an important factor in the
> least-restrictive-means analysis, but both RFRA and its sister statute,
> RLUIPA, may in some circumstances require the Government to expend
> additional funds to accommodate citizens’ religious beliefs. Cf.
> §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur
> expenses in its own operations to avoid imposing a substantial burden on
> religious
> exercise.’). HHS’s view that RFRA can never require the Government to
> spend even a small amount reflects a judgment about the importance of
> religious liberty that was not shared by the Congress that enacted that
> law.”
>
> Mark
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V
> *Sent:* Monday, June 30, 2014 12:28 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Hobby Lobby Question
>
> This is a good question.  AS I read the opinion it tends to rely on the
> fact that the insurance providers will be required to provide the coverage
> “for free” (given that it will overall cost less to cover than would
> pregnancies), so that the government must allocate not a single new penny.
> If, on the other hand, a new appropriation, even of a penny, would be
> necessary, then we all know that there isn’t a chance in hell of that being
> voted by Congress.
>
> sandy
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
> *Sent:* Monday, June 30, 2014 9:54 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Hobby Lobby Question
>
> As we are all digesting the Hobby Lobby d

Re: Attenuation

[Marty Lederman]

Perry:  I think this is a very important, and contestable, assumption:
"Hobby Lobby is using religious reasoning, not secular reasoning" [in
determining what sort of connection constitutes prohibited "complicity"].
What is the basis for that assumption?  In fact, virtually all theological
analysis I've ever seen about questions of complicity does *not *consist of
what we would ordinarily call "religious reasoning" -- such as whether God
exists, whether there's a heaven or a hell, whether God commands a
particular thing, or whether and when an embryo has a "soul" or is a "human
life" -- questions that secular authorities are incapable of or forbidden
from assessing.  Instead, that reasoning quite closely resembles the
ordinary sort of reasoning that nonreligious authorities -- academic,
legislative, and judicial -- make all the time about complicity and
responsibility and culpability of "accessories".  (Of course, the exception
is that, within the religious assessment, the existence and importance of
the underlying evil -- e.g., prevention of implantation of a fertilized
embryo -- is itself a religious question.  I am referring, instead, to the
questions of attenuation/proximate cause/responsibility/etc.)


On Tue, Jul 1, 2014 at 5:47 PM, Perry Dane  wrote:

>  Steve Jamar writes: "I do not reject the legitimacy nor the
> religiousity of the plaintiff’s beliefs.  Quite the contrary; I accept them
> and undertstand them.  But I do not accept that we should accept a
> complicity with evil claim when it becomes too attenuated as it is here.
>  The inquiry is attenuation, not substantive on the sinfulness nor evilness
> nor “legitimacy” of the beliefs."
>
> With all due respect, though, I have always found the
> "attenuation" claim the least convincing of the arguments against Hobby
> Lobby's position.
>
> As the majority opinion suggests, and as many of us have been saying
> for a long time, Hobby Lobby needs to be understood as putting on the table
> two distinct religious claims:  (1) Certain forms of contraception should
> not be used.  (2) Hobby Lobby and/or its owners are religiously prohibited
> from signing insurance contracts that cover those same forms of
> contraception.  Of course, Hobby Lobby has religious reasons taking it from
> claim (1) to claim (2).  But it's not the business of the secular state to
> second-guess the quality of that reasoning.  In fact, as far as the secular
> state is concerned, claim (1) should be essentially irrelevant.  All that
> really counts is claim (2).
>
> Imagine an observant Jewish prison inmate who asks for kosher food.
> The prison administration tells him, "We're happy to give you kosher food.
> We'll also be sure not to give you meat meals and dairy meals within
> however many hours of each other you think is religiously significant.  But
> we can't give you separate (or disposable) plates for your meat and dairy
> meals.  That would just be too expensive or complicated for us to do."  The
> prisoner responds, "That's not good enough, I'm afraid.  As a matter of
> Jewish law, hot foot transfers its 'taste' to plates, which in turn
> transfer the 'taste' to other food served on those plates, even if the
> plates are thoroughly washed between uses.  So I need separate or
> disposable plates."  (There are more technicalities that I won't get
> into.)  The prison administration replies, "That's just silly.  No 'taste'
> gets transferred.  We understand that you have religious reasons for not
> eating meat and dairy food together, and we'll grant you that
> accommodation, but this argument you're making about plates and such is
> just too attenuated."
>
>I suspect that most courts, and most of us, would reject this defense
> of "attenuation."  (This has nothing to do with arguments over compelling
> interest, less restrictive means, etc.)   Jewish law's conclusion [that (1)
> a ban on mixing dairy and meat foods entails (2) a ban on using the same
> dishes for dairy and meat foods] might be wacky from a secular or
> scientific point of view, but it's not up to the secular state to
> second-guess that view.  Indeed, all the secular state needs to know is
> that the prisoner has a religious need not to eat meat and dairy meals from
> the same plates.  If the prisoner is to lose, it will not be because his
> claim is too "attenuated."
>
> I think the hangup in the Hobby Lobby context is this:  We
> all appreciate that Jewish law and other system of religious ritual law
> often conceptualize the world in wacky-seeming ways very different from
> ordinary reasoning.  The separate-plates rule is the least of it.  (I say
> all this with all due respect; I guide some of my life by those wacky
> conceptualizations.)  Hobby Lobby, on the other hand, seems to be using a
> form of argument (complicity with evil) that has a much clearer secular
> analogue.  But that's deceptive.  Hobby Lobby is using religious reasoning,
> not secular reasoning.  That doe

Re: Hobby Lobby Question

[Vance R. Koven]

I assume that the use of quotes around "constitutional fact" is meant to
highlight that the phrase is used as an analogy in this situation, which is
governed by a statute and not the Constitution. But partly for that reason,
I think the danger of a jury's refusal to follow a proper instruction on
the irrelevance of a belief's rationality to its sincerity is not likely to
be very significant (since firstly, juries don't usually ignore a judge's
instructions, and secondly, a court can also enter a JNOV if the jury has
obviously gotten it wrong). If the determination of sincerity is left to
courts as some kind of "über-fact" then I think we really do tread
dangerous ground, since that determination will too often be made on hidden
policy agendas, for administrative convenience, or other factors that we
really don't want to impinge on religious liberty, to say nothing of
investing the courts in determining issues of religion that the
Constitution forbids them to do.


On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:

> Maybe this is a "constitutional fact," like NY Times actual malice. We
> need to be careful that a trier of fact does not conclude that a party
> isn't sincere just because the trier of fact thinks the belief is so
> obviously wrong that a reasonable person couldn't believe it.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> Sent from my iPad
>
> On Jul 1, 2014, at 8:30 AM, "Vance R. Koven"  wrote:
>
> I have (perhaps incorrectly) assumed that when the Court says *it* should
> not get involved in judging the sincerity of a religious belief, it is
> expressing the proper division of labor between a court and the finder of
> fact. It should be up to the jury (or the court wearing a fact-finder hat)
> to decide whether the belief is sincerely held or not. A trial court can
> easily enough instruct a jury to disregard whether they think the religious
> belief is kooky; but it's perfectly acceptable based on the credibility of
> the witnesses and direct and circumstantial evidence for a jury to
> ascertain whether the claimed religious belief is real or bogus.
>
> I have often suspected that doctrine in religious liberty cases has become
> quite twisted over time by courts' reluctance to let juries do what they're
> supposed to do.
>
>
> On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer 
> wrote:
>
>> I appreciate Steve's response, which I think demonstrates that he is
>> precisely rejecting the legitimacy (or perhaps the religiosity) of the
>> plaintiffs' beliefs.  The plaintiffs say that their religious beliefs
>> prohibit complicity with evil, and that signing a contract that makes
>> available certain chemicals or devices to others amounts to complicity with
>> evil, because of the use to which such chemicals or devices are most likely
>> to be put (terminating what plaintiffs believe is a human life).
>>
>> If a court should not accept that assertion "without inquiry," then what
>> inquiry is it supposed to make?
>>
>> Can a court evaluate and reject the religious belief that "complicity
>> with evil is sinful"?
>>
>> Can a court evaluate and reject the religious belief that "terminating a
>> human life is evil"?
>>
>> Can a court evaluate and reject the religious belief that "morning-after
>> pills terminate a human life"?
>>
>> Can a court evaluate and reject the religious belief that "providing the
>> means for a person to obtain a chemical or device whose principal purpose
>> is to terminate a human life, and that is likely to be used for that
>> purpose, counts as complicity in terminating a human life"?
>>
>> Is there some other inquiry the court should be making that I'm missing?
>>
>> Art Spitzer
>> PS - My questions should not be taken to imply that I necessarily agree
>> with the majority opinion (not that anyone cares), and they certainly do
>> not represent the views of my employer.
>>
>>
>>
>> *Warning*
>> *: this message is subject to monitoring by the NSA.*
>>
>>
>>
>>
>
> --
> Vance R. Koven
> Boston, MA USA
> vrko...@world.std.com
>
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