Contraception mandate
Hi all, I've posted a short essay -- half of a projected exchanged -- that tries to speak sanely about the contraceptive mandate debate. The piece offers a doctrinal analysis, but also explores how the debate -- and in particular the overblown claims by both sides -- suggest some imperfectly articulated undercurrents in the current American conversation about religion and the law. See http://ssrn.com/abstract=2296635 Comments would, of course, be welcome. Perry * Perry Dane Professor of Law Rutgers University School of Law d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: http://www.ssrn.com/author=48596 Academia.edu page: rutgers.academia.edu/PerryDane * ___ 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: Contraception mandate
By coincidence, I just posted a related piece, broader than Perry’s in some ways, narrower in others: http://papers.ssrn.com/abstract=2304427 The piece is framed in terms of the larger culture wars, and does not offer a full doctrinal analysis of the contraception litigation. But buried in the middle is a fairly detailed analysis of the recently published Final Rules on the contraception mandate, which also “tries to speak sanely.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane Sent: Thursday, August 01, 2013 10:27 AM To: religionlaw@lists.ucla.edu Subject: Contraception mandate Hi all, I've posted a short essay -- half of a projected exchanged -- that tries to speak sanely about the contraceptive mandate debate. The piece offers a doctrinal analysis, but also explores how the debate -- and in particular the overblown claims by both sides -- suggest some imperfectly articulated undercurrents in the current American conversation about religion and the law. See http://ssrn.com/abstract=2296635 Comments would, of course, be welcome. Perry * Perry Dane Professor of Law Rutgers University School of Law d...@crab.rutgers.edu mailto:d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ http://www.camlaw.rutgers.edu/bio/925/ SSRN Author page: http://www.ssrn.com/author=48596 Academia.edu page: rutgers.academia.edu/PerryDane * ___ 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: Contraception mandate
I hesitate a bit to pitch my piece here, since it could accelerate a trend that we might not want if the list is otherwise active; but since it's not active for now, I'll refer to my own new piece, which is likewise on (part of) the mandate and the culture wars and aims to express a certain position outside the familiar poles: progressive arguments for the freedom of religious organizations. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268824 - 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.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [dlayc...@virginia.edu] Sent: Thursday, August 01, 2013 9:53 AM To: d...@crab.rutgers.edu; 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate By coincidence, I just posted a related piece, broader than Perry’s in some ways, narrower in others: http://papers.ssrn.com/abstract=2304427 The piece is framed in terms of the larger culture wars, and does not offer a full doctrinal analysis of the contraception litigation. But buried in the middle is a fairly detailed analysis of the recently published Final Rules on the contraception mandate, which also “tries to speak sanely.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Perry Dane Sent: Thursday, August 01, 2013 10:27 AM To: religionlaw@lists.ucla.edu Subject: Contraception mandate Hi all, I've posted a short essay -- half of a projected exchanged -- that tries to speak sanely about the contraceptive mandate debate. The piece offers a doctrinal analysis, but also explores how the debate -- and in particular the overblown claims by both sides -- suggest some imperfectly articulated undercurrents in the current American conversation about religion and the law. See http://ssrn.com/abstract=2296635 Comments would, of course, be welcome. Perry * Perry Dane Professor of Law Rutgers University School of Law d...@crab.rutgers.edumailto:d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/http://www.camlaw.rutgers.edu/bio/925/ SSRN Author page: http://www.ssrn.com/author=48596 Academia.edu page: rutgers.academia.edu/PerryDane * ___ 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: Contraception mandate
A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end – in the analysis of compelling interest – rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of their faith across the whole range of human activity, including the world of business and commerce. It is this last point that I think would benefit most from being expanded to account for the doctrinal significance of Lee, where the Court identified a competing presumption that comes into play in for-profit cases due to impact on third parties: When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. I've previously criticized the Tenth Circuit majority in Hobby Lobby for failing to address this language from Lee. Since then, the Third Circuit majority in Conestoga Wood -- while coming to the opposite conclusion of the Tenth Circuit -- has likewise neglected to engage the relevant language from Lee (the dissents in both cases do at least quote the language, but neither provides a satisfying discussion of its relevance). Admittedly, the result in Lee is arguably in some tension with language in O'Centro, which itself is arguably in some tension with language in Cutter, but if we're going to get out of this doctrinal thicket, it seems to me that courts and commentators are going to have to carefully work through and (if possible) reconcile the language and results in all three of those cases. One final question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its operative language was identical to the language of RFRA. The supporters of a civil-rights exception to RLPA were seeking an amendment that they knew they needed, and that had not been part of RFRA. Did none of the supporters of RLPA try to reassure the civil rights community that they did not need an exception because the Supreme Court's pre-Smith jurisprudence that was being restored had already imposed limitations on exemptions in the commercial arena? I haven't studied the legislative history of RLPA, but I would have expected that argument to have been made (along with the argument that the Court's pre-Smith jurisprudence already found that preventing certain types of discrimination
RE: Contraception mandate
Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters did not say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske's post trigger a substantial discussion, I regret that I will not be much of a participant. I'm on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end - in the analysis of compelling interest - rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of their faith across the whole range of human activity, including the world of business and commerce. It is this last point that I think would benefit most from being expanded to account for the doctrinal significance of Lee, where the Court identified a competing presumption that comes into play in for-profit cases due to impact on third parties: When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. I've previously criticized the Tenth Circuit majority in Hobby Lobby for failing to address this language from Lee. Since then, the Third Circuit majority in Conestoga Wood -- while coming to the opposite conclusion of the Tenth Circuit -- has likewise neglected to engage the relevant language from Lee (the dissents in both cases do at least quote the language, but neither provides a satisfying discussion of its relevance). Admittedly, the result in Lee is arguably in some tension with language in O'Centro, which itself is arguably in some tension with language in Cutter, but if
RE: Contraception mandate
Sorry. The first sentence below was supposed to say there were cases that the religious objectors deserved to win. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters did not say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske's post trigger a substantial discussion, I regret that I will not be much of a participant. I'm on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end - in the analysis of compelling interest - rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of their faith across the whole range of human activity, including the world of business and commerce. It is this last point that I think would benefit most from being expanded to account for the doctrinal significance of Lee, where the Court identified a competing presumption that comes into play in for-profit cases due to impact on third parties: When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. I've previously
Re: Contraception mandate
Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that business corporations would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably no. The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be yes for race, usually yes for sex, and TBD for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock dlayc...@virginia.eduwrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock *Sent:* Thursday, August 01, 2013 3:24 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Contraception mandate ** ** Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. ** ** Supporters did *not* say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially *Thomas v. Anchorage Human Rights Commission* in the Ninth Circuit. *Thomas* was later vacated on other grounds, but the opinion is still on Westlaw. ** ** If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Thursday, August 01, 2013 2:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Contraception mandate [snip] One final question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its operative language was identical to the language of RFRA. The supporters of a civil-rights exception to RLPA were seeking an amendment that they knew they needed, and that had not been part of RFRA. Did none of the supporters of RLPA try to reassure the civil rights community that they did not need an exception because the Supreme Court's pre-Smith jurisprudence that was being restored had already imposed limitations on exemptions in the commercial arena? I haven't studied the legislative history of RLPA, but I would have expected that argument to have been made (along with the argument that the Court's pre-Smith jurisprudence already found that preventing certain types of discrimination is a compelling state interest that can trump religious exemption claims). ** ** Best, Jim ** ** On Thu, Aug 1, 2013 at 7:53 AM, Douglas Laycock dlayc...@virginia.edu wrote: By coincidence, I just posted a related piece, broader than Perry’s in some ways, narrower in others: http://papers.ssrn.com/abstract=2304427 The piece is framed in terms of the larger
Re: Contraception mandate
As I understand the process, Doug reassured folks on the left that RLPA as applied to land use law would not apply to the civil rights laws, particularly the fair housing laws. Not sure how to square that w Doug's current statements. I also find the in pari materia argument disingenuous at best. When RFRA was being enacted, the Coalition had agreed amongst themselves not to disclose individual agendas. And none of the very few examples used to support RFRA had anything remotely to do w for-profit companies. As I say in my Justia.com column on the Hobby Lobby decision, had the members been informed that RFRA would open doors for Wal-Mart to get around laws, RFRA would have taken a very different path. Despite being deeply involved in RFRA via Boerne, and educated by the many organizations that contacted me, I only learned that the CLS was intent on overcoming the fair housing laws when a memo re the CA state RFRA was inadvertently shared w me. Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life position, but was reassured RFRA would not affect the abortion issue. All of these elements need to be explained to make the argument that RFRA was intended to apply to for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 2:35 PM, James Oleske jole...@lclark.edu wrote: A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end – in the analysis of compelling interest – rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of their faith across the whole range of human activity, including the world of business and commerce. It is this last point that I think would benefit most from being expanded to account for the doctrinal significance of Lee, where the Court identified a competing presumption that comes into play in for-profit cases due to impact on third parties: When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. I've previously criticized the Tenth Circuit majority in Hobby Lobby for failing to address this language from Lee. Since then, the Third Circuit majority in Conestoga Wood -- while coming to the opposite conclusion of the Tenth Circuit -- has likewise neglected to engage the relevant language from Lee (the dissents in both cases do at least
Citations to Listserv posts/Contraception mandate
Doug Laycock has just posted this very interesting article to SSRN on Religious Liberty and the Culture Wars that I recommend (though I would certainly take issue with parts of it): http://papers.ssrn.com/abstract=2304427 Doug's piece prompted me to wonder about a non-substantive point, however, about which I thought an interjection might be in order: I was a bit surprised to see, in note 155 of his essay, that Doug cites a couple of CONLAWPROF listserv posts of mine as evidence of a particular argument about religious burdens that some have suggested--an argument that Doug quite forthrightly condemns. FWIW, I don't think Doug has conveyed the true nature of the argument I was making -- it was a limited argument specifically in response to one of his -- but that's ok, because anyone who cares at all about what I think (or thought one day last February) will go to the posts themselves to see the context and the specific claims. And, to his credit, Doug quite appropriately notes that in the second of the two posts, I specifically disclaimed the argument that he uses the first of my posts to illustrate. But I wanted to raise a broader question. Doug also cites to posts by Marci Hamilton, and Jonathan Mallamud, from the same thread. All of these cites raise a caution and a question. (The posts in question were on CONLAWPROF, but the point is the same w/r/t ReligionLaw.) The caution: You should all be aware, if you aren't already, that all that we post here is available online for all the world to see . . . 'til the end of time! That hasn't really deterred me at all from posting my views, even when they are tentative and somewhat provocative or controversial -- and I hope the same is true for the rest of you, too. (I just did a very quick Westlaw search for lists.ucla.edu, and found twelve cites to posts on these two listservs, some of them laudatory (or giving the author credit for the first articulation of a point): One post each to Tom Berg, Josh Chafetz, Doug himself, Chris Lund, Chip Lupu, and Eugene Volokh; two cites to Mark Tushnet; and four cites to yours truly (what does this say about me?!) For all I know, some or all of the authors checked with the cited writers before citing -- I don't recall in my own cases.) The question: What is the etiquette, as it were, of citing listserv posts and thereby attributing views to one another? My tentative view is that it's ok -- after all, non-listserv members can and will do so, and I trust all of you to try your best to fairly characterize what I and others have said, in good faith. But I have a lingering concern that such a practice will deter candid engagement on the listservs. I'm not sure that's entirely a bad thing, even if it is occurring -- my general view is that one should always assume that what we write will appear on the front page of the New York Times, because that makes for more careful, more thoughtful writing. But of course the listservs serve as a kind of real-time conversation, too; and it would be a shame if people became reluctant to engage in a back-and-forth for fear that their posts will later be cited. I sent these thoughts to Doug, who asked me to share with you that he considered the question, and cited the posts because: I thought that 1) these posts are archived on a publicly available website, 2) we had talked about that fact on the list from time to time, 3) the contraceptive mandate was relatively new and some of these arguments had not made it into published articles yet (at least that I knew about), and 4) I was talking about a broad shift in attitudes and these less formal writings tended to reveal what people really felt. What do others think? Should the informal, unpoliced norm be that we won't cite one another's posts without at least giving the author a head's up . . . or perhaps, even, allowing the author a veto? Would it depend on how the cite is being used? What I'm most interested in is whether any of you would be chilled *in an unfortunate way* from posting now that you know you might be cited. (As noted above, I think some chilling is a good thing, insofar as it prompts more thoughtful writing.) Thanks in advance, Marty ___ 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: Contraception mandate
I think it is critically important to remember that RLPA was rejected categorically by the members as much too broad. The history w respect to anything other than land use and prisons are the only histories that have any reliable content to them for future interpretation. Post-enactment legislative history is the least reliable and should never be accepted as evidence of legislative purpose by courts. I would have thought that was where anyone analyzing RFRA and RLPA would start. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 5:39 PM, James Oleske jole...@lclark.edu wrote: Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that business corporations would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably no. The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be yes for race, usually yes for sex, and TBD for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock dlayc...@virginia.edu wrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters did not say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate [snip] One final question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its operative language was identical to the language of RFRA. The supporters of a civil-rights exception to RLPA were seeking an amendment that they knew they needed, and that had not been part of RFRA. Did none of the supporters of RLPA try to reassure the civil rights community that they did not need an exception because the Supreme Court's pre-Smith jurisprudence that was being restored had already imposed limitations on exemptions in the commercial arena? I haven't studied the legislative
Re: Contraception mandate
Doug and I chaired the drafting committee pushing RLPA. We also lobbied Congress and left wing groups together when the civil rights issued surfaced. Then and now the fight has also clearly been understood as between carving out civil rights laws entirely and leaving them in but acknowledging that in most cases -and certainly in regard to race-application of such laws would satisfy the act's compelling interest requirement. Had Doug ever accepted the civil rights carve out urged for example by leading. Democrats,and the ACLU et al, RLPA would today be law. In all the intervening years, doug has consistently adhered to the same position-that religious liberty standards apply to all claims but some are more likely to prevail than others. One can disagree with that position, but it is flat out wrong to accuse Doug of misleading anyone. Marc Stern From: Marci Hamilton [mailto:hamilto...@aol.com] Sent: Thursday, August 01, 2013 07:01 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate As I understand the process, Doug reassured folks on the left that RLPA as applied to land use law would not apply to the civil rights laws, particularly the fair housing laws. Not sure how to square that w Doug's current statements. I also find the in pari materia argument disingenuous at best. When RFRA was being enacted, the Coalition had agreed amongst themselves not to disclose individual agendas. And none of the very few examples used to support RFRA had anything remotely to do w for-profit companies. As I say in my Justia.comhttp://Justia.com column on the Hobby Lobby decision, had the members been informed that RFRA would open doors for Wal-Mart to get around laws, RFRA would have taken a very different path. Despite being deeply involved in RFRA via Boerne, and educated by the many organizations that contacted me, I only learned that the CLS was intent on overcoming the fair housing laws when a memo re the CA state RFRA was inadvertently shared w me. Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life position, but was reassured RFRA would not affect the abortion issue. All of these elements need to be explained to make the argument that RFRA was intended to apply to for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 2:35 PM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end – in the analysis of compelling interest – rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of
Re: Contraception mandate
Doug and I chaired the drafting committee pushing RLPA. We also lobbied Congress and left wing groups together when the civil rights issued surfaced. Then and now the fight has also clearly been understood as between carving out civil rights laws entirely and leaving them in but acknowledging that in most cases -and certainly in regard to race-application of such laws would satisfy the act's compelling interest requirement. Had Doug ever accepted the civil rights carve out urged for example by leading. Democrats,and the ACLU et al, RLPA would today be law. In all the intervening years, doug has consistently adhered to the same position-that religious liberty standards apply to all claims but some are more likely to prevail than others. One can disagree with that position, but it is flat out wrong to accuse Doug of misleading anyone. Marc Stern From: Marci Hamilton [mailto:hamilto...@aol.com] Sent: Thursday, August 01, 2013 07:01 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate As I understand the process, Doug reassured folks on the left that RLPA as applied to land use law would not apply to the civil rights laws, particularly the fair housing laws. Not sure how to square that w Doug's current statements. I also find the in pari materia argument disingenuous at best. When RFRA was being enacted, the Coalition had agreed amongst themselves not to disclose individual agendas. And none of the very few examples used to support RFRA had anything remotely to do w for-profit companies. As I say in my Justia.comhttp://Justia.com column on the Hobby Lobby decision, had the members been informed that RFRA would open doors for Wal-Mart to get around laws, RFRA would have taken a very different path. Despite being deeply involved in RFRA via Boerne, and educated by the many organizations that contacted me, I only learned that the CLS was intent on overcoming the fair housing laws when a memo re the CA state RFRA was inadvertently shared w me. Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life position, but was reassured RFRA would not affect the abortion issue. All of these elements need to be explained to make the argument that RFRA was intended to apply to for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 2:35 PM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political right. But Professor Laycock has previously offered strong criticism of rhetoric on the left about religious issues. What is most striking to me about about this piece is that it flatly rejects the central talking point of some of those on the right who have relied most heavily on Professor Laycock's scholarship about religious exemptions. Like Professor Laycock's piece, Professor Dane's piece finds fault with overheated claims on both sides of the debate, but I'm most interested in the doctrinal analysis Professor Dane offers in place of the heat. In particular, on the issue of exemptions for for-profit institutions, Professor Dane's analysis begins with a line that, while not explicitly discussing the case, seems to track the approach of the Court in United States v. Lee: I do think that the for-profit status of some religious objectors might be relevant, but at the back end – in the analysis of compelling interest – rather than the front end determination of substantial burden. Professor Dane then notes that arguments can be made for and against making distinctions between small and large businesses in determining the government's interest in denying exemptions (I would only add that the denial of an exemption to a very small employer in Lee may be relevant to further exploration of these arguments). Professor Dane concludes his analysis by stating that a vital proposition in the conception of religious liberty is that believers have at least a presumptive right to live out the commitments of
Re: Contraception mandate
Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I think it is critically important to remember that RLPA was rejected categorically by the members as much too broad. The history w respect to anything other than land use and prisons are the only histories that have any reliable content to them for future interpretation. Post-enactment legislative history is the least reliable and should never be accepted as evidence of legislative purpose by courts. I would have thought that was where anyone analyzing RFRA and RLPA would start. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 5:39 PM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that business corporations would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably no. The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be yes for race, usually yes for sex, and TBD for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters did not say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate [snip] One final question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its operative language was identical to the language of RFRA. The supporters of a civil-rights exception to RLPA were seeking an amendment that they knew they needed, and that had not been part of RFRA. Did none of the supporters of RLPA try to reassure the civil rights community that they did not need an exception
Re: Contraception mandate
Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc From: Saperstein, David [mailto:dsaperst...@rac.org] Sent: Thursday, August 01, 2013 07:25 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: I think it is critically important to remember that RLPA was rejected categorically by the members as much too broad. The history w respect to anything other than land use and prisons are the only histories that have any reliable content to them for future interpretation. Post-enactment legislative history is the least reliable and should never be accepted as evidence of legislative purpose by courts. I would have thought that was where anyone analyzing RFRA and RLPA would start. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 5:39 PM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that business corporations would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably no. The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be yes for race, usually yes for sex, and TBD for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters did not say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate [snip] One final question for Professor Laycock: In footnote 67 of your piece, you point to the legislative history of RLPA as evidence that RFRA covers for-profits, writing: Both sides in that debate believed that if enacted, RLPA would protect for-profit businesses from civil rights claims that substantially burdened the owner’s free exercise of religion. RLPA was in pari materia
Re: Contraception mandate
With all due respect, Marc, RLPA was doomed by many forces, not just the civil rights community. The American Academy of Pediatrics, and many other leading organizations for the protection of children took a very strong stand. We lobbied Congress together as well (we didn't have chairs). The two sides were not in the same rooms at the same time, obviously. Your defense of Doug does not answer the factual questions I have posed. I have no idea what Doug has been saying to groups in private all these years, because, as I pointed out, those discussions have not been public, but rather behind closed doors among fellow lobbyists on that side. Where in the RFRA legislative history (which is the only one that can be taken into account on any issue other than land use or prisons), is there any mention of for-profit corporations obtaining its capacious rights? I also find it very surprising at the idea that the civil rights groups should be mollfied when told that their interests would be compelling interests, given that the least restrictive means test was still in play, and, as urged by most litigants on that side, virtually insuperable. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:29 pm Subject: Re: Contraception mandate Doug and I chaired the drafting committee pushing RLPA. We also lobbied Congress and left wing groups together when the civil rights issued surfaced. Then and now the fight has also clearly been understood as between carving out civil rights laws entirely and leaving them in but acknowledging that in most cases -and certainly in regard to race-application of such laws would satisfy the act's compelling interest requirement. Had Doug ever accepted the civil rights carve out urged for example by leading. Democrats,and the ACLU et al, RLPA would today be law. In all the intervening years, doug has consistently adhered to the same position-that religious liberty standards apply to all claims but some are more likely to prevail than others. One can disagree with that position, but it is flat out wrong to accuse Doug of misleading anyone. Marc Stern From: Marci Hamilton [mailto:hamilto...@aol.com] Sent: Thursday, August 01, 2013 07:01 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate As I understand the process, Doug reassured folks on the left that RLPA as applied to land use law would not apply to the civil rights laws, particularly the fair housing laws. Not sure how to square that w Doug's current statements. I also find the in pari materia argument disingenuous at best. When RFRA was being enacted, the Coalition had agreed amongst themselves not to disclose individual agendas. And none of the very few examples used to support RFRA had anything remotely to do w for-profit companies. As I say in my Justia.com column on the Hobby Lobby decision, had the members been informed that RFRA would open doors for Wal-Mart to get around laws, RFRA would have taken a very different path. Despite being deeply involved in RFRA via Boerne, and educated by the many organizations that contacted me, I only learned that the CLS was intent on overcoming the fair housing laws when a memo re the CA state RFRA was inadvertently shared w me. Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life position, but was reassured RFRA would not affect the abortion issue. All of these elements need to be explained to make the argument that RFRA was intended to apply to for-profit corporations. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 2:35 PM, James Oleske jole...@lclark.edu wrote: A few comments and one question upon an initial read of Professor Laycock and Professor Dane's pieces. First, with respect to Professor Laycock's piece, I think it is difficult to overstate the importance of one of the nation's most prominent and respected advocates for a broad conception of religious liberty penning the following words: These Final Rules offer a serious plan to protect religious liberty without depriving women of contraception These Final Rules are utterly inconsistent with the common charge that the Obama Administration is engaged in a 'war on religion.' Professor Laycock's piece does not spare the political left from similar rebukes -- indeed, groups on the political left come in for more extensive criticism in the Growing Hostility section of the piece than groups on the political
Re: Contraception mandate
Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc From: Saperstein, David [mailto:dsaperst...@rac.org] Sent: Thursday, August 01, 2013 07:25 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton hamilto...@aol.com wrote: I think it is critically important to remember that RLPA was rejected categorically by the members as much too broad. The history w respect to anything other than land use and prisons are the only histories that have any reliable content to them for future interpretation. Post-enactment legislative history is the least reliable and should never be accepted as evidence of legislative purpose by courts. I would have thought that was where anyone analyzing RFRA and RLPA would start. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 5:39 PM, James Oleske jole...@lclark.edu wrote: Thanks for the reminder that Thomas, Swanner, and other similar housing cases were part of the RLPA discussion. I see from a quick look at the RLPA House Report that they were explicitly discussed there, and there is a footnote in the same general discussion rejecting the argument that business corporations would be categorically excluded from RPLA protection. But to be clear, my question isn't whether supporters of RLPA thought for-profits would be categorically excluded from protection. It's clear they didn't think that. My question is whether, when fears were raised of commercial businesses being shielded by RLPA from civil rights laws, supporters of RLPA argued that those defenses could be balanced and limited by the courts consistent with Lee and its solicitude for the competing rights of employees in the commercial context. It sounds like the answer is probably no. The House report does not address that issue and instead focuses on the issue of whether antidiscrimination qualifies as a compelling interest, with the report's opinion seeming to be yes for race, usually yes for sex, and TBD for everything else (citing specifically the split in the lower courts over application of the compelling interest test in the marital status cases like Thomas and Swanner, but not expressing an opinion as to how those cases should turn out). On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock dlayc...@virginia.edu wrote: Sorry. The first sentence below was supposed to say “there were cases that the religious objectors deserved to win.” Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of Douglas Laycock Sent: Thursday, August 01, 2013 3:24 PM To: 'Law Religion issues for Law Academics' Subject: RE: Contraception mandate Supporters of RLPA said that civil rights claimants would win most of the cases on compelling interest grounds, but that civil rights had come to be a very broad category, and there the religious objectors deserved to win. They said the RLPA standard should be uniformly applied to all cases, as with the RFRA standard. Supporters didnot say that for-profit businesses would not have a RLPA defense. This whole issue with respect to RLPA was triggered by a series of cases about for-profit landlords and unmarried opposite-sex couples, especiallyThomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later vacated on other grounds, but the opinion is still on Westlaw. If these articles and Professor Oleske’s post trigger a substantial discussion, I regret that I will not be much of a participant. I’m on deadline and behind the curve with another major project. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]On Behalf Of James Oleske Sent: Thursday, August 01, 2013 2:36 PM To: Law Religion issues for Law Academics Subject: Re: Contraception mandate [snip] One final
Re: Citations to Listserv posts/Contraception mandate
I think citing to a listserv discussion without confirming with the author is bad form unless one is simply crediting an idea that one is using that one first learned on the listserv. I think using an idea posted as a foil (or worse) without giving the author the opportunity to clarify and extend his or her remarks is particularly inappropriate. But, for the most part, I don't think any of us are so important or what we talk about so valuable or brilliant that much harm could ever be done by such behavior. Pre-tenure folk may want to be a bit more circumspect, or those who are really concerned about their reputations among a tiny insignificant (for the most part) crowd, but for most of us, I don't think it matters one whit. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ “It’s all about you, using your own mind, without any method or schema, to restore order from chaos. And once you have, you can sit back and say, ‘Hey, the rest of my life may be a disaster, but at least I have a solution.’ ” Marcel Danesi, in an interview about his book, “The Puzzle Instinct: The Meaning of Puzzles in Human Life.” On Aug 1, 2013, at 4:10 PM, Marty Lederman lederman.ma...@gmail.com wrote: Doug Laycock has just posted this very interesting article to SSRN on Religious Liberty and the Culture Wars that I recommend (though I would certainly take issue with parts of it): http://papers.ssrn.com/abstract=2304427 Doug's piece prompted me to wonder about a non-substantive point, however, about which I thought an interjection might be in order: I was a bit surprised to see, in note 155 of his essay, that Doug cites a couple of CONLAWPROF listserv posts of mine as evidence of a particular argument about religious burdens that some have suggested--an argument that Doug quite forthrightly condemns. FWIW, I don't think Doug has conveyed the true nature of the argument I was making -- it was a limited argument specifically in response to one of his -- but that's ok, because anyone who cares at all about what I think (or thought one day last February) will go to the posts themselves to see the context and the specific claims. And, to his credit, Doug quite appropriately notes that in the second of the two posts, I specifically disclaimed the argument that he uses the first of my posts to illustrate. But I wanted to raise a broader question. Doug also cites to posts by Marci Hamilton, and Jonathan Mallamud, from the same thread. All of these cites raise a caution and a question. (The posts in question were on CONLAWPROF, but the point is the same w/r/t ReligionLaw.) The caution: You should all be aware, if you aren't already, that all that we post here is available online for all the world to see . . . 'til the end of time! That hasn't really deterred me at all from posting my views, even when they are tentative and somewhat provocative or controversial -- and I hope the same is true for the rest of you, too. (I just did a very quick Westlaw search for lists.ucla.edu, and found twelve cites to posts on these two listservs, some of them laudatory (or giving the author credit for the first articulation of a point): One post each to Tom Berg, Josh Chafetz, Doug himself, Chris Lund, Chip Lupu, and Eugene Volokh; two cites to Mark Tushnet; and four cites to yours truly (what does this say about me?!) For all I know, some or all of the authors checked with the cited writers before citing -- I don't recall in my own cases.) The question: What is the etiquette, as it were, of citing listserv posts and thereby attributing views to one another? My tentative view is that it's ok -- after all, non-listserv members can and will do so, and I trust all of you to try your best to fairly characterize what I and others have said, in good faith. But I have a lingering concern that such a practice will deter candid engagement on the listservs. I'm not sure that's entirely a bad thing, even if it is occurring -- my general view is that one should always assume that what we write will appear on the front page of the New York Times, because that makes for more careful, more thoughtful writing. But of course the listservs serve as a kind of real-time conversation, too; and it would be a shame if people became reluctant to engage in a back-and-forth for fear that their posts will later be cited. I sent these thoughts to Doug, who asked me to share with you that he considered the question, and cited the posts because: I thought that 1) these posts are archived on a publicly available website, 2) we had talked about that fact on the list from time to time, 3) the contraceptive mandate was relatively new and some
RE: Contraception mandate
Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Marc Stern ste...@ajc.orgmailto:ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc ___ 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: Contraception mandate
Dear colleagues, Religious liberty is, of course, a fundamental human right, and so it is not clear to me why it should be troubling or surprising that legal regimes would be embraced by human-rights advocates (like Marc, Doug, etc.) that respect that right by insisting, e.g., that majority-supported legislation (of any type) substantially burdening the exercise of that right be closely scrutinized. Rick Garnett Sent from my iPhone On Aug 1, 2013, at 7:47 PM, hamilto...@aol.commailto:hamilto...@aol.com hamilto...@aol.commailto:hamilto...@aol.com wrote: With all due respect, Marc, RLPA was doomed by many forces, not just the civil rights community. The American Academy of Pediatrics, and many other leading organizations for the protection of children took a very strong stand. We lobbied Congress together as well (we didn't have chairs). The two sides were not in the same rooms at the same time, obviously. Your defense of Doug does not answer the factual questions I have posed. I have no idea what Doug has been saying to groups in private all these years, because, as I pointed out, those discussions have not been public, but rather behind closed doors among fellow lobbyists on that side. Where in the RFRA legislative history (which is the only one that can be taken into account on any issue other than land use or prisons), is there any mention of for-profit corporations obtaining its capacious rights? I also find it very surprising at the idea that the civil rights groups should be mollfied when told that their interests would be compelling interests, given that the least restrictive means test was still in play, and, as urged by most litigants on that side, virtually insuperable. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts ___ 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: Contraception mandate
I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. There is no need for that. Here is a fact: Many following enactment of RLUIPA have stated unequivocally that the land use provisions were not intended to apply to the fair housing (i.e., civil rights) laws. Since the only legis history on RLUIPA was RLPA, that assumption (that the civil rights laws were beyond the new statute) had to come from the RLPA proceedings. What is the missing piece that explains how Doug and Marc have explained the history? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:56 pm Subject: RE: Contraception mandate Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Contraception mandate
No, Marci. You personalized this. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, August 01, 2013 5:20 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception mandate I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. There is no need for that. Here is a fact: Many following enactment of RLUIPA have stated unequivocally that the land use provisions were not intended to apply to the fair housing (i.e., civil rights) laws. Since the only legis history on RLUIPA was RLPA, that assumption (that the civil rights laws were beyond the new statute) had to come from the RLPA proceedings. What is the missing piece that explains how Doug and Marc have explained the history? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:56 pm Subject: RE: Contraception mandate Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu?] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts [http://www.sol-reform.com/tw.png] https://twitter.com/marci_hamilton -Original Message- From: Marc Stern ste...@ajc.orgmailto:ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception mandate
RLUIPA does not apply to fair housing laws because it applies only to land use regulation and institutionalized persons, and it exprssly defines land use regulation as zoning and landmarking. Period. No mystery to explain. My recollection is that that definition was added late in the process. I have not checked that. Before that amendment, neither I nor any other supporter assured opponents that RLPA would not apply to fair housing laws. The whole fight was fueled by fair housing laws. There were negotiations about exempting large landlords and protecting small landlords. But these negotiations quickly broke down because the two sides were too far apart on what the size limit should be. RLPA had other opponents, but the civil rights issue is what killed it. It is not true that it was doomed by its overbreadth. It was not even obvious at the time that it was doomed by the civil rights fight. The Nadler Amendment to exclude civil rights claims was defeated in the House 234-190. The unamended bill then passed the House 306-118. That lopsided yes vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. Rec. H5607-08. The bill then died in the Senate without a vote. Both sides in the debate over the Nadler Amendment, and in the earlier debates in committee, were fighting about a live issue. No one thought they were making post-enactment legislative history for RFRA. They were all acting on a common understanding about what the language copied from RFRA meant. On Thu, 1 Aug 2013 20:20:28 -0400 (EDT) hamilto...@aol.com wrote: I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. There is no need for that. Here is a fact: Many following enactment of RLUIPA have stated unequivocally that the land use provisions were not intended to apply to the fair housing (i.e., civil rights) laws. Since the only legis history on RLUIPA was RLPA, that assumption (that the civil rights laws were beyond the new statute) had to come from the RLPA proceedings. What is the missing piece that explains how Doug and Marc have explained the history? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:56 pm Subject: RE: Contraception mandate Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc ___ 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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message
Re: Contraception mandate
An additional fact: the civil rights issue came into public view after the ACLU wrote a letter to Congress-whether to the whole house or the judiciary committee I don't recall- spelling out in detail the cases in which civil liberties and religious liberty claims clashed. It was that letter that sparked the nadler amendment and the breakup of the coalition that had earlier supported RFRA. Marc - Original Message - From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Thursday, August 01, 2013 09:30 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilto...@aol.com hamilto...@aol.com Subject: Re: Contraception mandate RLUIPA does not apply to fair housing laws because it applies only to land use regulation and institutionalized persons, and it exprssly defines land use regulation as zoning and landmarking. Period. No mystery to explain. My recollection is that that definition was added late in the process. I have not checked that. Before that amendment, neither I nor any other supporter assured opponents that RLPA would not apply to fair housing laws. The whole fight was fueled by fair housing laws. There were negotiations about exempting large landlords and protecting small landlords. But these negotiations quickly broke down because the two sides were too far apart on what the size limit should be. RLPA had other opponents, but the civil rights issue is what killed it. It is not true that it was doomed by its overbreadth. It was not even obvious at the time that it was doomed by the civil rights fight. The Nadler Amendment to exclude civil rights claims was defeated in the House 234-190. The unamended bill then passed the House 306-118. That lopsided yes vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. Rec. H5607-08. The bill then died in the Senate without a vote. Both sides in the debate over the Nadler Amendment, and in the earlier debates in committee, were fighting about a live issue. No one thought they were making post-enactment legislative history for RFRA. They were all acting on a common understanding about what the language copied from RFRA meant. On Thu, 1 Aug 2013 20:20:28 -0400 (EDT) hamilto...@aol.com wrote: I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. There is no need for that. Here is a fact: Many following enactment of RLUIPA have stated unequivocally that the land use provisions were not intended to apply to the fair housing (i.e., civil rights) laws. Since the only legis history on RLUIPA was RLPA, that assumption (that the civil rights laws were beyond the new statute) had to come from the RLPA proceedings. What is the missing piece that explains how Doug and Marc have explained the history? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:56 pm Subject: RE: Contraception mandate Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Marc- I didn't say Doug was lying. I said that the history, as I knew it, was distinctive from his account. I think we can discuss the facts on the listserv without having to stoop to such namecalling. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marc Stern ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:34 pm Subject: Re: Contraception mandate Saw it. In the next post, she accuses doug of lying to left wing groups about RLPA and civil rights. I've responded defending Doug. Marc
Re: Contraception mandate
I know I'm not the listmod, but could we please keep the posts on topic for the listserv? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Aug 1, 2013, at 6:32 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: No, Marci. You personalized this. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, August 01, 2013 5:20 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Contraception mandate I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. ___ 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: Contraception mandate
OK, here's an effort to get us back on the track (of the current circuit split): What Doug wrote was that there was a common understanding that RLPA would protect for-profit *businesses* from civil rights claims *that **substantially burdened the owner’s free exercise of religion*. Now, it's not clear how this bears on whether and when *RFRA *protects for-profit corporations, since RFRA was enacted before RLPA was considered . . . but even if there were some basis for treating the two as coterminous . . . and even if RLPA would have protected the exercise of religion of the *owner *of a for-profit *business *(Doug points to landlords), that would not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga *-- of whether a for-profit *corporation* exercises religion; whether such a corporation has any religious duties that might be violated if the corporation complies with the ACA; and, if so, whether the HHS reg would substantially burden the religious exercise of the for-profit corporation itself. On Thu, Aug 1, 2013 at 10:01 PM, David Cruz dc...@law.usc.edu wrote: I know I'm not the listmod, but could we please keep the posts on topic for the listserv? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Aug 1, 2013, at 6:32 PM, Volokh, Eugene vol...@law.ucla.edu wrote: No, Marci. You personalized this. ** ** *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com *Sent:* Thursday, August 01, 2013 5:20 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Contraception mandate ** ** I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Reminder: AALS Law and Religion CFP deadline upcoming
All the listserv's conversation on the contraception mandate, and the rolling of the calendar to August 1, prompt me to re-send this Call for Papers to the list. The initial deadline is August 15, although only an abstract is needed. We are still definitely soliciting submissions and encourage those with thoughts on the mandate or other related issues to the topic to consider submitting an abstract or paper. Best, Joel Section on Law and Religion Call for Papers for January 2014 AALS Annual Meeting Program: “Cooperating With Evil, Complicity with Sin” From Alan Brownstein and Joel Nichols, Program Chairs for AALS Section on Law and Religion The AALS Section on Law and Religion invites the submission of papers or abstracts (no more than 5 pages) for the purpose of selecting one or two speakers for a panel at the Section’s program at the January 2014 AALS annual meeting in New York. The program is scheduled for Saturday, Jan. 4, 2014, from 2:00-3:45. Other invited speakers will also be on the panel also. The program description follows: What does it mean for religious believers and groups to refrain from “cooperating with evil”? When does involvement with government action rise to condoning it? And who decides whether a religious objector is “participating” in and thereby complicit with religiously objectionable conduct? Such questions play a central role in the HHS contraceptive mandate debate but they arise in other controversies as well – ranging from religious objections to same-sex marriage to the conscience claims of pharmacists opposed to stocking or selling abortifacients. Numerous doctrinal issues are relevant to a discussion of this problem. These include whether allegations of moral complicity satisfy the “substantial burden” requirement a RFRA or free exercise claimant must satisfy, and how courts should take attenuated causation questions into account if a substantial burden is found to exist. Other questions relate to the concern that an expansive conception of moral complicity may extend so broadly that general accommodation statutes (or constitutional interpretations) would become unacceptable in their scope and unmanageable in their operation. This panel will explore these and other problems arising from the relationship between conceptions of moral complicity and the evaluation of religious liberty claims under constitutional or statutory law. Submission Deadline and Procedures: Deadline is August 15, 2013. Abstracts should be submitted by email to Joel Nichols, Univ. of St. Thomas (MN) School of Law, joel.nich...@stthomas.edumailto:joel.nich...@stthomas.edu Proposal Requirements: An abstract of not more than five pages, or a completed paper. Presentation and Publication: Any speaker chosen from this call will be expected to produce an original substantial paper, or to have already produced a substantial paper, a draft of which will be available to be posted on the AALS web site prior to the annual meeting and that will be published in the University of St. Thomas Law Journal (MN) during the 2013-14 academic year. Selection and Eligibility: Selection will be by blind review. Under AALS rules, only full-time faculty members of AALS member law schools are eligible. Faculty at fee-paid law schools; foreign, visiting, and adjunct faculty members; graduate students; fellows; and non-law-school faculty are not eligible. AALS rules require any speaker to pay the annual meeting registration fee and travel expenses. Joel A. Nichols Associate Dean for Academic Affairs and Professor of Law University of St. Thomas School of Law 1000 Lasalle Ave., MSL #400 Minneapolis, Minnesota 55403 (651) 962-4827 (tel.) (651) 962-4996 (fax) joel.nich...@stthomas.edumailto:joel.nich...@stthomas.edu http://www.stthomas.edu/law/facultystaff/faculty/nicholsjoel/ -- Articles and book chapters: http://ssrn.com/author=386894 Books: Marriage and Divorce in a Multicultural Context: www.cambridge.org/9780521194754applewebdata://B28C217A-5662-41EE-B835-0FDF766DA590/www.cambridge.org/9780521194754 Religion and the American Constitutional Experiment: www.westviewpress.com/books.php?course=200http://www.westviewpress.com/books.php?course=200 -- ___ 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: Contraception mandate
There is no all in the legislative process. There are only competing interests and conflicting sides. I am not going to belabor this for this exchange, but as someone who was as intimately involved in this as Doug, but on the opposite side, his description encompasses some but not all of what was happening. He can certainly speak for those who started altogether on his side even if they split asunder later. That would be the Coalition and the civil rights groups. He cannot speak authoritatively for those who were on the other side, particularly when they ultimately prevailed. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 1, 2013, at 9:48 PM, Marc Stern ste...@ajc.org wrote: An additional fact: the civil rights issue came into public view after the ACLU wrote a letter to Congress-whether to the whole house or the judiciary committee I don't recall- spelling out in detail the cases in which civil liberties and religious liberty claims clashed. It was that letter that sparked the nadler amendment and the breakup of the coalition that had earlier supported RFRA. Marc - Original Message - From: Douglas Laycock [mailto:dlayc...@virginia.edu] Sent: Thursday, August 01, 2013 09:30 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilto...@aol.com hamilto...@aol.com Subject: Re: Contraception mandate RLUIPA does not apply to fair housing laws because it applies only to land use regulation and institutionalized persons, and it exprssly defines land use regulation as zoning and landmarking. Period. No mystery to explain. My recollection is that that definition was added late in the process. I have not checked that. Before that amendment, neither I nor any other supporter assured opponents that RLPA would not apply to fair housing laws. The whole fight was fueled by fair housing laws. There were negotiations about exempting large landlords and protecting small landlords. But these negotiations quickly broke down because the two sides were too far apart on what the size limit should be. RLPA had other opponents, but the civil rights issue is what killed it. It is not true that it was doomed by its overbreadth. It was not even obvious at the time that it was doomed by the civil rights fight. The Nadler Amendment to exclude civil rights claims was defeated in the House 234-190. The unamended bill then passed the House 306-118. That lopsided yes vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. Rec. H5607-08. The bill then died in the Senate without a vote. Both sides in the debate over the Nadler Amendment, and in the earlier debates in committee, were fighting about a live issue. No one thought they were making post-enactment legislative history for RFRA. They were all acting on a common understanding about what the language copied from RFRA meant. On Thu, 1 Aug 2013 20:20:28 -0400 (EDT) hamilto...@aol.com wrote: I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. There is no need for that. Here is a fact: Many following enactment of RLUIPA have stated unequivocally that the land use provisions were not intended to apply to the fair housing (i.e., civil rights) laws. Since the only legis history on RLUIPA was RLPA, that assumption (that the civil rights laws were beyond the new statute) had to come from the RLPA proceedings. What is the missing piece that explains how Doug and Marc have explained the history? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Aug 1, 2013 7:56 pm Subject: RE: Contraception mandate Indeed, Marci didn’t say Doug was “lying,” but when one says of a first-hand witness that the “history, as I knew it, was distinctive from his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's current statements,” the implicit accusation seems to me to be pretty clear. But I should think that this could be clearly resolved: If Marci wants to produce some quotes from Doug that are at variance with his current statements, that would be very interesting. But until any such quotes are produced, I’m inclined to trust Doug. And I agree that we should discuss facts on the listserv without stooping to namecalling. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Re: Contraception mandate
In poking around further in the legislative history of RLPA, I think there is evidence that there might *not *have been a common understanding about the applicability of RLPA and RFRA to for-profit *corporations* as opposed to individual landlords: The question of whether a corporate employer or corporate landlord may raise a religious liberty defense is less clear than whether an individual serving as an employer or landlord may raise that defense. Religious Liberty Protection Act of 1999: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 106th Cong. 127 (statement of Christopher Anders, ACLU Legislative Counsel) (citing two pre-Smith lower court decisions that went in different directions on the issue in dicta). As for my initial question concerning whether there was any discussion of the import of Lee's commercial activity passage during the debate over RLPA and its applicability to civil rights defendants, there does not appear to be any such discussion in the House hearing transcript (I haven't had a chance to look through all the submitted testimony, some of which might include a more extended discussion of Lee). Of course, even if Lee had been relied upon by supporters of RLPA to assuage concerns about the proposed act's reach into the commercial context, I'm not sure how relevant it would be to the current debate over the earlier-enacted RFRA. I'm persuaded by Doug's argument that if both sides in the RLPA debate has a common understanding of what the identical RFRA and RLPA language meant, that would be helpful in interpreting RFRA, but the scenario I asked about (one side trying to unsuccessfully assuage the concerns of the other side) wouldn't meet that standard, and probably falls more into the category of attempted post-enactment legislative history. All of which leaves us with lingering unanswered questions about Lee, which I continue to believe is a case that poses difficulties for leading arguments on both sides of the contraception mandate debate. On Thu, Aug 1, 2013 at 7:29 PM, Marty Lederman lederman.ma...@gmail.comwrote: OK, here's an effort to get us back on the track (of the current circuit split): What Doug wrote was that there was a common understanding that RLPA would protect for-profit *businesses* from civil rights claims *that **substantially burdened the owner’s free exercise of religion*. Now, it's not clear how this bears on whether and when *RFRA *protects for-profit corporations, since RFRA was enacted before RLPA was considered . . . but even if there were some basis for treating the two as coterminous . . . and even if RLPA would have protected the exercise of religion of the *owner *of a for-profit *business *(Doug points to landlords), that would not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga *-- of whether a for-profit *corporation* exercises religion; whether such a corporation has any religious duties that might be violated if the corporation complies with the ACA; and, if so, whether the HHS reg would substantially burden the religious exercise of the for-profit corporation itself. ___ 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.
