Re: Hobby Lobby Question

[Vance R. Koven]

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

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


On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer  wrote:

> I appreciate Steve's response, which I think demonstrates that he is
> precisely rejecting the legitimacy (or perhaps the religiosity) of the
> plaintiffs' beliefs.  The plaintiffs say that their religious beliefs
> prohibit complicity with evil, and that signing a contract that makes
> available certain chemicals or devices to others amounts to complicity with
> evil, because of the use to which such chemicals or devices are most likely
> to be put (terminating what plaintiffs believe is a human life).
>
> If a court should not accept that assertion "without inquiry," then what
> inquiry is it supposed to make?
>
> Can a court evaluate and reject the religious belief that "complicity with
> evil is sinful"?
>
> Can a court evaluate and reject the religious belief that "terminating a
> human life is evil"?
>
> Can a court evaluate and reject the religious belief that "morning-after
> pills terminate a human life"?
>
> Can a court evaluate and reject the religious belief that "providing the
> means for a person to obtain a chemical or device whose principal purpose
> is to terminate a human life, and that is likely to be used for that
> purpose, counts as complicity in terminating a human life"?
>
> Is there some other inquiry the court should be making that I'm missing?
>
> Art Spitzer
> PS - My questions should not be taken to imply that I necessarily agree
> with the majority opinion (not that anyone cares), and they certainly do
> not represent the views of my employer.
>
>
>
> *Warning*
> *: this message is subject to monitoring by the NSA.*
>
>
>
>

-- 
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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Re: Hobby Lobby Question

[Steven Jamar]

No.  I do not reject the legitimacy nor the religiousity of the plaintiff’s 
beliefs.  Quite the contrary; I accept them and undertstand them.  But I do not 
accept that we should accept a complicity with evil claim when it becomes too 
attenuated as it is here.  The inquiry is attenuation, not substantive on the 
sinfulness nor evilness nor “legitimacy” of the beliefs.

Here, the attenuation wanders through several steps:  
1.  corporate structure (this alone would not be enough attenuation in my 
judgment)
2.  insurance coverage is outside of their control — it is mandated by the state
3.  the actual payments for the abortificants (howsoever erroneously or 
correctly defined is irrellevant) comes from a third party — the insurers and 
so this attenuates the action by the owners one step more (compare Rosenberger 
and voucher cases treatment of directness)
4.  the decision to get the abortificants is by the employee.

Note that if the employer did not provide any insurance, it would still be 
complicit with evil by paying any wages at all to women employees some of whom 
may use an IUD or get a morning-after pill or other offending treatment.  Yet 
surely no one would claim that that would allow the employer to not pay wages 
or to reduce wages by the cost of obtaining such devices, would they?

This is the danger of this case — where does one draw the line on the 
complicity with evil theory?  Can Quakers now stop paying that portion of taxes 
that goes to support war?  That is at least as directly complicit as in this 
case.

So I would use attenuation — we use this sort of idea in proximate cause and in 
other settings for legal responsibility and can do so here.  Imperfectly?  
Surely.  But the law never achieves perfection.

Steve

On Jul 1, 2014, at 2:04 AM, Arthur Spitzer  wrote:

> I appreciate Steve's response, which I think demonstrates that he is 
> precisely rejecting the legitimacy (or perhaps the religiosity) of the 
> plaintiffs' beliefs.  The plaintiffs say that their religious beliefs 
> prohibit complicity with evil, and that signing a contract that makes 
> available certain chemicals or devices to others amounts to complicity with 
> evil, because of the use to which such chemicals or devices are most likely 
> to be put (terminating what plaintiffs believe is a human life).  
> 
> If a court should not accept that assertion "without inquiry," then what 
> inquiry is it supposed to make?  
> 
> Can a court evaluate and reject the religious belief that "complicity with 
> evil is sinful"?  
> 
> Can a court evaluate and reject the religious belief that "terminating a 
> human life is evil"?  
> 
> Can a court evaluate and reject the religious belief that "morning-after 
> pills terminate a human life"?  
> 
> Can a court evaluate and reject the religious belief that "providing the 
> means for a person to obtain a chemical or device whose principal purpose is 
> to terminate a human life, and that is likely to be used for that purpose, 
> counts as complicity in terminating a human life"? 
> 
> Is there some other inquiry the court should be making that I'm missing?
> 
> Art Spitzer
> PS - My questions should not be taken to imply that I necessarily agree with 
> the majority opinion (not that anyone cares), and they certainly do not 
> represent the views of my employer.
> 
> 
> 
> Warning: this message is subject to monitoring by the NSA.
> 
> 
> 
> On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar  wrote:
> The court accepts without inquiry the assertion that the complicity with evil 
> theory is the problem that leads to the substantial burden. It merely accepts 
> the claim that the adherents cannot comply because of the complicity theory.  
> It then bootstraps that there would be costs of non-compliance. 
> At the core the court buys the argument that an attenuated complicity can be 
> the basis of a substantial burden.
> 
> Sent from Steve's iPhone 
> 
> 
> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer  wrote:
> 
>> I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably 
>> requires all courts to simply accept the religious adherent’s claim that the 
>> burden is substantial."  The majority analyzed whether the burden was 
>> substantial and found it was because the ACA would impose millions of 
>> dollars of financial penalties on the plaintiffs if they did not comply.  
>> Slip op. at 32.  I don't think the Court tells us whether a $100 fine would 
>> have been a substantial burden.  I'm curious what in the opinion Steve 
>> points to in support of the proposition that courts may not evaluate the 
>> substantiality of a burden, especially considering that the Court did 
>> evaluate that question, as an empirical matter, in this case.
>> 
>> Art Spitzer
>> 
>> 
>> Warning: this message is subject to monitoring by the NSA.
>> 
>> 
>> 
>> On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar  wrote:
>> Brown eliminated the constitutional doctrine of separate but equal — in

RE: Hobby Lobby Question

[Alan Brownstein]

I think Steve is right that in the there is a difference between challenging 
the legitimacy or religiosity of plaintiffs beliefs and holding that as a legal 
matter at some point we will draw the line on extending the protection provided 
to beliefs that are grounded in complicity with other people's conduct.  
Ginsburg makes this point explicitly in her dissent. Alito pretty much ignores 
it. Suppose plaintiff argued that according to their religious beliefs about 
complicity they could not contribute to an insurance plan that covered 
treatments provided by hospitals or clinics that also provided abortion 
services. The only providers covered by a plan they could conscientiously 
support would be those who personally and institutionally refused to provide 
abortion services. That is more attenuated than Hobby Lobby's claim, but it is 
grounded on the same foundation of complicity.

The question to me is whether the correct place to take this attenuation into 
account is in the determination of substantial burden or whether it should be 
considered in evaluating the government's compelling state interest and whether 
there are less restrictive means available to further the state's goals. The 
downside of focusing on attenuation in deciding whether there is a substantial 
burden is that courts may be more influenced by their doubts as to the 
legitimacy or religiosity of belief when they are asked to evaluate the 
substantiality of the burden and using substantiality of the burden to control 
attenuation may result in some cases where the government wins even though it's 
interest is very low and should not be considered weighty enough to justify 
even an attenuated burden on religious exercise.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, July 01, 2014 9:32 AM
To: Law Religion & Law List
Subject: Re: Hobby Lobby Question

No.  I do not reject the legitimacy nor the religiousity of the plaintiff's 
beliefs.  Quite the contrary; I accept them and undertstand them.  But I do not 
accept that we should accept a complicity with evil claim when it becomes too 
attenuated as it is here.  The inquiry is attenuation, not substantive on the 
sinfulness nor evilness nor "legitimacy" of the beliefs.

Here, the attenuation wanders through several steps:
1.  corporate structure (this alone would not be enough attenuation in my 
judgment)
2.  insurance coverage is outside of their control - it is mandated by the state
3.  the actual payments for the abortificants (howsoever erroneously or 
correctly defined is irrellevant) comes from a third party - the insurers and 
so this attenuates the action by the owners one step more (compare Rosenberger 
and voucher cases treatment of directness)
4.  the decision to get the abortificants is by the employee.

Note that if the employer did not provide any insurance, it would still be 
complicit with evil by paying any wages at all to women employees some of whom 
may use an IUD or get a morning-after pill or other offending treatment.  Yet 
surely no one would claim that that would allow the employer to not pay wages 
or to reduce wages by the cost of obtaining such devices, would they?

This is the danger of this case - where does one draw the line on the 
complicity with evil theory?  Can Quakers now stop paying that portion of taxes 
that goes to support war?  That is at least as directly complicit as in this 
case.

So I would use attenuation - we use this sort of idea in proximate cause and in 
other settings for legal responsibility and can do so here.  Imperfectly?  
Surely.  But the law never achieves perfection.

Steve

On Jul 1, 2014, at 2:04 AM, Arthur Spitzer 
mailto:artspit...@gmail.com>> wrote:


I appreciate Steve's response, which I think demonstrates that he is precisely 
rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' 
beliefs.  The plaintiffs say that their religious beliefs prohibit complicity 
with evil, and that signing a contract that makes available certain chemicals 
or devices to others amounts to complicity with evil, because of the use to 
which such chemicals or devices are most likely to be put (terminating what 
plaintiffs believe is a human life).

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

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

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

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

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

Is there some oth

Re: Hobby Lobby Question

[Scarberry, Mark]

Maybe this is a "constitutional fact," like NY Times actual malice. We need to 
be careful that a trier of fact does not conclude that a party isn't sincere 
just because the trier of fact thinks the belief is so obviously wrong that a 
reasonable person couldn't believe it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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

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

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


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

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

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

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

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

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

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

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



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






--
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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Little Sisters question

[Hillel Y. Levin]

Suppose the courts hold in favor of Little Sisters/Notre Dame, and whoever
else might object to the certification requirement (including, I guess,
Hobby Lobby, if the agency takes the Court's invitation to offer a similar
accommodation to for-profits. (As has been noted, the *Hobby Lobby *decision
may not make such a future holding likely, but it certainly does not
foreclose the possibility.)

What could the government then do to ensure coverage of these forms of
contraception (short of covering them directly, which seems politically
untenable)?

Four example, could it promulgate a rule as follows:

   - An employer that declines to provide such coverage for religious
   reasons must alert employees;
   - any employee may then file a form with the federal government (or the
   insurance company) attesting that the employer's plan will not cover the
   relevant contraception;
   - this notification from any employee then triggers the requirement that
   the insurance company provide coverage at no cost to all employees covered
   by the plan.

Would this satisfy these religious employers? The difference between this
and the current certification regime is that the employer doesn't file
anything with the government; it merely provides information to the
employees. Any employee can then decide what to do with that
information--i.e. whether or not to file for coverage.

I understand that this imposes an additional burden on at least one
employee at the company to file the form. (And this rule is not what I'd
prefer.) But as a practical matter, it would provide an avenue for the
contraceptive coverage, and I imagine that some watchdog group could help
employees navigate this.





-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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RE: Hobby Lobby Question

[Daniel J. Greenwood]

1.   Rhetorically, it was probably overdetermined that the Court grant the 
rights to the corporation and not its “owners”.



By claiming that it was protecting the corporation, the Court avoided the 
curious problem of why the FA should protect a particular, and peculiarly 
absolutist, view of corporate governance – “an economic theory which a large 
part of the country does not entertain.”



2.   Non-profits clearly don’t have owners.  Neither (less clearly) do 
for-profit corporations, at least where they have more than one shareholder: no 
one has the most basic right of ownership, the right to waste.  Neither does 
Hobby Lobby, if I understand correctly: its sole shareholder is a trust and the 
trustees are barred from exercising independent judgment on a number of 
important issues.



3.   Accordingly, had the Court based its new right in the rights of the 
“owners” it would have been forced to make a clear and decisive distinction 
between closely-held, shareholder-controlled corporations – the only form of 
corporation that has owners in anything resembling the ordinary sense of 
ownership (and even then, only if you take corporate law procedure to override 
its substance) –and all other corporations.  That, of course, would make the 
Court’s reliance on the Dictionary Act silly.



4.   Moreover, had it given the right to the “owners”, it would have to 
confront the problem that we no longer allow ownership of employees.  Whatever 
the “owners” own (the Greens, apparently, own nothing at all, but are instead 
the beneficiaries of a trust that owns Hobby Lobby’s shares), they do not own 
the bodies or the medical care or the contract rights of the firm’s employees.  
The issue here is the relative power of different claimants to speak for the 
corporation under the rules of corporate governance:  whether employees, 
managers, shareholders or the People get to decide the terms on which corporate 
medical insurance is written.



5.   Who determines the corporate position on controversial issues ought to 
be an issue of corporate law, contract law and the ACA, perhaps even 
Federalism.  It has next to nothing to do with religious freedom, except to the 
extent that general principles (not our law) suggest allowing different 
individuals to follow their conscience with a minimum of interference from 
other individuals or power structures.



6.   The Greens have won the right to impose their religious views on the 
corporation and its unwilling participants despite the ACA’s rule that they 
must share this corporate decisionmaking role with their employees.  The ACA 
decentralized the corporate decision about contraceptives, allowing each 
corporate participant to follow her or his own conscience.  The Court holds, 
instead, that contraceptive decisions may be made instead by directors or 
shareholders or trust beneficiaries of the shareholder(it’s not entirely clear 
which role now has a constitutionally protected right to override ordinary 
corporate law and impose its views on the other corporate participants) and 
imposed on corporate employees and customers.  Those people are put to the 
“difficult choice” of giving up the benefits of corporate form or accepting the 
fiat of the newly empowered corporate elite.  The issue resolved here is not 
state vs citizen or majority religion vs minority religion but rather the 
internal decisionmaking structure of the firm.





7.   Following an ancient tradition, the Court claims that granting rights 
to the organization protects the “people (including shareholders, officers, and 
employees) who are associated with [it]”.  In US constitutional law, this 
argument goes back at least to Letson, the first 
corporation-and-the-Constitution case.  Repetition and age, however, have not 
made the argument sound.



The claim, as should be clear to anyone familiar with the social contract 
tradition, is false.  Protecting the organization protects the incumbent 
officeholders against upstarts and dissidents who might want to share the 
decisionmaking power or disagree with the decisions officeholders seek to 
impose on them.  Thus, minority and democratic rights in international and 
constitutional law begin by reducing the protection the “state” has (inherited 
royal prerogative, established church, sovereign immunity, comity, etc).   To 
bring basic civil rights to Americans living in the former slave states, the 
first step had to be to limit, not enhance, states’ rights; the same was true 
to protect subjects from their dictatorial governments.  To allow married women 
control of their property or abolish husbands’ spousal rape privileges, it was 
essential to violate, not protect, the privacy and autonomy of the family.  
Protecting the “privacy” of the corporation prevents employees and customers 
and shareholders from learning what managers are doing, let alone influencing 
it – that is the opposite of protecting them.  To pr

Re: Hobby Lobby Question

[David Cruz]

Hobby Lobby was a RFRA case, so I’m puzzled below by the references below to 
the First Amendment (point 1) and a “constitutionally protected right” (point 
6).

David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.


From: "Daniel J. Greenwood" 
mailto:daniel.greenw...@hofstra.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Tuesday, July 1, 2014 at 1:40 PM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: RE: Hobby Lobby Question


1.   Rhetorically, it was probably overdetermined that the Court grant the 
rights to the corporation and not its “owners”.



By claiming that it was protecting the corporation, the Court avoided the 
curious problem of why the FA should protect a particular, and peculiarly 
absolutist, view of corporate governance – “an economic theory which a large 
part of the country does not entertain.”



2.   Non-profits clearly don’t have owners.  Neither (less clearly) do 
for-profit corporations, at least where they have more than one shareholder: no 
one has the most basic right of ownership, the right to waste.  Neither does 
Hobby Lobby, if I understand correctly: its sole shareholder is a trust and the 
trustees are barred from exercising independent judgment on a number of 
important issues.



3.   Accordingly, had the Court based its new right in the rights of the 
“owners” it would have been forced to make a clear and decisive distinction 
between closely-held, shareholder-controlled corporations – the only form of 
corporation that has owners in anything resembling the ordinary sense of 
ownership (and even then, only if you take corporate law procedure to override 
its substance) –and all other corporations.  That, of course, would make the 
Court’s reliance on the Dictionary Act silly.



4.   Moreover, had it given the right to the “owners”, it would have to 
confront the problem that we no longer allow ownership of employees.  Whatever 
the “owners” own (the Greens, apparently, own nothing at all, but are instead 
the beneficiaries of a trust that owns Hobby Lobby’s shares), they do not own 
the bodies or the medical care or the contract rights of the firm’s employees.  
The issue here is the relative power of different claimants to speak for the 
corporation under the rules of corporate governance:  whether employees, 
managers, shareholders or the People get to decide the terms on which corporate 
medical insurance is written.



5.   Who determines the corporate position on controversial issues ought to 
be an issue of corporate law, contract law and the ACA, perhaps even 
Federalism.  It has next to nothing to do with religious freedom, except to the 
extent that general principles (not our law) suggest allowing different 
individuals to follow their conscience with a minimum of interference from 
other individuals or power structures.



6.   The Greens have won the right to impose their religious views on the 
corporation and its unwilling participants despite the ACA’s rule that they 
must share this corporate decisionmaking role with their employees.  The ACA 
decentralized the corporate decision about contraceptives, allowing each 
corporate participant to follow her or his own conscience.  The Court holds, 
instead, that contraceptive decisions may be made instead by directors or 
shareholders or trust beneficiaries of the shareholder(it’s not entirely clear 
which role now has a constitutionally protected right to override ordinary 
corporate law and impose its views on the other corporate participants) and 
imposed on corporate employees and customers.  Those people are put to the 
“difficult choice” of giving up the benefits of corporate form or accepting the 
fiat of the newly empowered corporate elite.  The issue resolved here is not 
state vs citizen or majority religion vs minority religion but rather the 
internal decisionmaking structure of the firm.





7.   Following an ancient tradition, the Court claims that granting rights 
to the organization protects the “people (including shareholders, officers, and 
employees) who are associated with [it]”.  In US constitutional law, this 
argument goes back at least to Letson, the first 
corporation-and-the-Constitution case.  Repetition and age, however, have not 
made the argument sound.



The claim, as should be clear to anyone familiar with the social contract 
tradition, is false.  Protecting the organization protects the incumbent 
officeholders against upstarts and dissidents who might want to share the 
decisionmaking power or disagree with the decisions officeholders seek to 
impose on them.  Thus, minority and democratic rights in international and 
constitutional law begin by reducing the protection the “state” has (inherited 
royal prerogative, established church, sovereign immunity, comity, etc).   To 
bring basic

Attenuation

[Perry Dane]

 

 Steve Jamar writes: "I do not reject the legitimacy nor the
religiousity of the plaintiff's beliefs. Quite the contrary; I accept
them and undertstand them. But I do not accept that we should accept a
complicity with evil claim when it becomes too attenuated as it is here.
The inquiry is attenuation, not substantive on the sinfulness nor
evilness nor "legitimacy" of the beliefs." 

 With all due respect,
though, I have always found the "attenuation" claim the least convincing
of the arguments against Hobby Lobby's position. 

 As the majority
opinion suggests, and as many of us have been saying for a long time,
Hobby Lobby needs to be understood as putting on the table two distinct
religious claims: (1) Certain forms of contraception should not be used.
(2) Hobby Lobby and/or its owners are religiously prohibited from
signing insurance contracts that cover those same forms of
contraception. Of course, Hobby Lobby has religious reasons taking it
from claim (1) to claim (2). But it's not the business of the secular
state to second-guess the quality of that reasoning. In fact, as far as
the secular state is concerned, claim (1) should be essentially
irrelevant. All that really counts is claim (2). 

 Imagine an observant
Jewish prison inmate who asks for kosher food. The prison administration
tells him, "We're happy to give you kosher food. We'll also be sure not
to give you meat meals and dairy meals within however many hours of each
other you think is religiously significant. But we can't give you
separate (or disposable) plates for your meat and dairy meals. That
would just be too expensive or complicated for us to do." The prisoner
responds, "That's not good enough, I'm afraid. As a matter of Jewish
law, hot foot transfers its 'taste' to plates, which in turn transfer
the 'taste' to other food served on those plates, even if the plates are
thoroughly washed between uses. So I need separate or disposable
plates." (There are more technicalities that I won't get into.) The
prison administration replies, "That's just silly. No 'taste' gets
transferred. We understand that you have religious reasons for not
eating meat and dairy food together, and we'll grant you that
accommodation, but this argument you're making about plates and such is
just too attenuated." 

 I suspect that most courts, and most of us,
would reject this defense of "attenuation." (This has nothing to do with
arguments over compelling interest, less restrictive means, etc.) Jewish
law's conclusion [that (1) a ban on mixing dairy and meat foods entails
(2) a ban on using the same dishes for dairy and meat foods] might be
wacky from a secular or scientific point of view, but it's not up to the
secular state to second-guess that view. Indeed, all the secular state
needs to know is that the prisoner has a religious need not to eat meat
and dairy meals from the same plates. If the prisoner is to lose, it
will not be because his claim is too "attenuated." 

 I think the hangup
in the Hobby Lobby context is this: We all appreciate that Jewish law
and other system of religious ritual law often conceptualize the world
in wacky-seeming ways very different from ordinary reasoning. The
separate-plates rule is the least of it. (I say all this with all due
respect; I guide some of my life by those wacky conceptualizations.)
Hobby Lobby, on the other hand, seems to be using a form of argument
(complicity with evil) that has a much clearer secular analogue. But
that's deceptive. Hobby Lobby is using religious reasoning, not secular
reasoning. That doesn't mean it should win at the end of the day. But it
does mean that's it objection to signing certain health insurance
contracts shouldn't just be dismissed as too "attenuated." More to the
point, we really should -- as an analytic and doctrinal matter -- just
ignore Hobby Lobby's underlying objection to certain contraceptives; all
that should matter is that it objects for religious reasons to signing
the damn contracts. 

 Perry 

--

* 
Perry Dane 
Professor of
Law 
Rutgers University School of Law


*
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The "less restrictive means" analysis and political feasibility

[Volokh, Eugene]

It seems to me that there are likely to be many situations in which a court 
holds that a law isn’t the “least restrictive means,” but the political 
coalition backing the law has lost power – whether in the recent past, or just 
because the law is a very old one – and therefore any less restrictive means 
would be politically infeasible.  I hadn’t thought that this would be an 
argument against striking down the law.



To give an example, in Sable Communications v. FCC the Court struck down a 
total ban on dial-a-porn, which was ostensibly aimed at protecting children, 
because there were less restrictive means available (in the form of credit card 
screening and the like).  Let’s say, though, that between the enactment of the 
law and the decision control of one house of Congress had changed, and the 
party now in control of that house had no desire to restrict porn any more.  
(This is a counterfactual, but imagine this happening at the state level, in a 
state where one party might indeed take a “who cares about porn?” view.)  
Sandy, do you think that the Court should in that situation say, “Well, we 
realize that any less restrictive means would be politically infeasible, so 
we’ll uphold the law because there aren’t any politically feasible less 
restrictive means”?  Or is there some important distinction here?



Eugene



Sandy Levinson writes:



AS I read the opinion it tends to rely on the fact that the insurance providers 
will be required to provide the coverage “for free” (given that it will overall 
cost less to cover than would pregnancies), so that the government must 
allocate not a single new penny.  If, on the other hand, a new appropriation, 
even of a penny, would be necessary, then we all know that there isn’t a chance 
in hell of that being voted by Congress



I think that it's utter cynicism to suggest possibilities that are politically 
impossible. The life of the law should be experience and not arid logical 
possibility.
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RE: Little Sisters question

[Scarberry, Mark]

One problem is that the text of the HHS required notification form appears to 
instruct the administrator to obtain the coverage or at least to tell the 
administrator that it has an obligation to obtain the coverage. Thus, the S. 
Ct. allowed the Little Sisters to give notice without using the form, if I 
understand this correctly. (I think Marty disagrees with this 
characterization.) If the employer simply had to notify the government of its 
refusal to provide the coverage, then there would be less of an objection 
(though I understand that some religious groups would still object due to the 
triggering effect of the giving of the notice).

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Tuesday, July 01, 2014 12:09 PM
To: Law & Religion issues for Law Academics
Subject: Little Sisters question

Suppose the courts hold in favor of Little Sisters/Notre Dame, and whoever else 
might object to the certification requirement (including, I guess, Hobby Lobby, 
if the agency takes the Court's invitation to offer a similar accommodation to 
for-profits. (As has been noted, the Hobby Lobby decision may not make such a 
future holding likely, but it certainly does not foreclose the possibility.)

What could the government then do to ensure coverage of these forms of 
contraception (short of covering them directly, which seems politically 
untenable)?

Four example, could it promulgate a rule as follows:

 *   An employer that declines to provide such coverage for religious reasons 
must alert employees;
 *   any employee may then file a form with the federal government (or the 
insurance company) attesting that the employer's plan will not cover the 
relevant contraception;
 *   this notification from any employee then triggers the requirement that the 
insurance company provide coverage at no cost to all employees covered by the 
plan.
Would this satisfy these religious employers? The difference between this and 
the current certification regime is that the employer doesn't file anything 
with the government; it merely provides information to the employees. Any 
employee can then decide what to do with that information--i.e. whether or not 
to file for coverage.

I understand that this imposes an additional burden on at least one employee at 
the company to file the form. (And this rule is not what I'd prefer.) But as a 
practical matter, it would provide an avenue for the contraceptive coverage, 
and I imagine that some watchdog group could help employees navigate this.





--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
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Re: Hobby Lobby Question

[Levinson, Sanford V]

That is, of course, a deep problem. People can sincerely believe absolutely 
crazy things.

Sandy

Sent from my iPhone

On Jul 1, 2014, at 12:29 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:

Maybe this is a "constitutional fact," like NY Times actual malice. We need to 
be careful that a trier of fact does not conclude that a party isn't sincere 
just because the trier of fact thinks the belief is so obviously wrong that a 
reasonable person couldn't believe it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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

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

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


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

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

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

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

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

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

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

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



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






--
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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Re: Hobby Lobby Question

[Rick Duncan]

The Court assumed that there is a compelling interest in covering 
contraceptives, even though there are literally millions of women whose 
policies are exempted from the mandate under the ACA. Do we all agree that such 
gross underinclusion is irrelevant to the issue of compelling interest? 

 
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

My recent article, Just Another Brick in the Wall: The Establishment Clause as 
a Heckler's Veto, is available at SSRN

"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)



 From: "Scarberry, Mark" 
To: Law & Religion issues for Law Academics  
Sent: Monday, June 30, 2014 8:03 PM
Subject: RE: Hobby Lobby Question
 


With regard to Sandy’s comment that there isn’t a chance in hell of getting 
funding from Congress to cover these methods of contraception:
 
Do we agree that a less restrictive means is available for purposes of RFRA and 
(where applicable) constitutional analysis, even if the government (including 
Congress) is for some reason unwilling to use it? The political difficulty (or 
impossibility) of getting agreement on implementing an approach does not make 
it unavailable; it just means that there is no consensus on using it. Do we 
agree on that point?
 
On the question whether govt funding may be a less restrictive means:
 
The majority opinion does suggest that the government could be required, if it 
seeks to advance its compelling interest, to incur a cost that is small 
compared to the cost of the entire program. A means of advancing that interest 
that requires the spending of money could be a less restrictive means – less 
restrictive of religious liberty – than a requirement that the individual or 
business incur the cost. See the discussion that begins at the top of page 41, 
and this excerpt from pp. 42-43: 
 
“The most straightforward way of doing this would be for the Government to 
assume the cost of providing the four contraceptives at issue to any women who 
are unable to obtain them under their health-insurance policies due to their 
employers’ religious objections. … It seems likely, however, that the cost of 
providing the forms of contraceptives at issue in these cases (if not all 
FDA-approved contraceptives) would be minor when compared with the overall cost 
of ACA. … If, as HHS tells us, providing all women with cost-free access to all 
FDA-approved methods of contraception is a Government interest of the highest 
order, it is hard to understand HHS’s argument that it cannot be required under 
RFRA to pay anything in order to achieve this important goal.
 “We do not doubt that cost may be an important factor in the 
least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, 
may in some circumstances require the Government to expend additional funds to 
accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his 
chapter may require a government to incur expenses in its own operations to 
avoid imposing a substantial burden on religious
exercise.’). HHS’s view that RFRA can never require the Government to spend 
even a small amount reflects a judgment about the importance of religious 
liberty that was not shared by the Congress that enacted that law.”
 
Mark
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 


From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 12:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question
 
This is a good question.  AS I read the opinion it tends to rely on the fact 
that the insurance providers will be required to provide the coverage “for 
free” (given that it will overall cost less to cover than would pregnancies), 
so that the government must allocate not a single new penny.  If, on the other 
hand, a new appropriation, even of a penny, would be necessary, then we all 
know that there isn’t a chance in hell of that being voted by Congress.
 
sandy
 
From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 9:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question
 
As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

 
-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu
hillelle...@gmail.com

Re: Hobby Lobby Question

[Rick Duncan]

I wonder if the "complicity with evil" position is similar to the position many 
academics took a number of years ago concerning disinvestment and boycotts of 
companies that did business in the old South Africa? Maybe that metaphor would 
strike a chord? 

 
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

My recent article, Just Another Brick in the Wall: The Establishment Clause as 
a Heckler's Veto, is available at SSRN

"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)



 From: Arthur Spitzer 
To: Law & Religion issues for Law Academics  
Sent: Tuesday, July 1, 2014 1:04 AM
Subject: Re: Hobby Lobby Question
 


I appreciate Steve's response, which I think demonstrates that he is precisely 
rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' 
beliefs.  The plaintiffs say that their religious beliefs prohibit complicity 
with evil, and that signing a contract that makes available certain chemicals 
or devices to others amounts to complicity with evil, because of the use to 
which such chemicals or devices are most likely to be put (terminating what 
plaintiffs believe is a human life).  

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

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

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

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

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

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

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





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




On Tue, Jul 1, 2014 at 12:46 AM, Steven Jamar  wrote:


>
>
>The court accepts without inquiry the assertion that the complicity with evil 
>theory is the problem that leads to the substantial burden. It merely accepts 
>the claim that the adherents cannot comply because of the complicity theory.  
>It then bootstraps that there would be costs of non-compliance. 
>At the core the court buys the argument that an attenuated complicity can be 
>the basis of a substantial burden.
>
>Sent from Steve's iPhone 
>
>
>
>On Jul 1, 2014, at 12:20 AM, Arthur Spitzer  wrote:
>
>
>I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably 
>requires all courts to simply accept the religious adherent’s claim that the 
>burden is substantial."  The majority analyzed whether the burden was 
>substantial and found it was because the ACA would impose millions of dollars 
>of financial penalties on the plaintiffs if they did not comply.  Slip op. at 
>32.  I don't think the Court tells us whether a $100 fine would have been a 
>substantial burden.  I'm curious what in the opinion Steve points to in 
>support of the proposition that courts may not evaluate the substantiality of 
>a burden, especially considering that the Court did evaluate that question, as 
>an empirical matter, in this case.
>>
>>Art Spitzer
>>
>>
>>
>>
>>
>>Warning: this message is subject to monitoring by the NSA.
>>
>>
>>
>>
>>On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar  wrote:
>>
>>Brown eliminated the constitutional doctrine of separate but equal — in the 
>>Brown decision just for education, but it was applied to all racial 
>>classifications.  The 1964 Civil Rights Act accomplished much more, of 
>>course, but the Brown decision matters a lot.
>>>
>>>
>>>So it is with numerous decisions.  Hobby Lobby’s acceptance of the 
>>>complicity with evil theory in this attenuated context and its ruling that 
>>>arguably requires all courts to simply accept the religious adherent’s claim 
>>>that the burden is substantial, could dramatically change the landscape of 
>>>RFRA interpretation federally and by example at the state level.    These 
>>>underlying principles could also be restricted by later decisions or 
>>>expanded.  It is a very troubling expansion of RFRA beyond what was intended 
>>>originally.  But that is hardly unique to this bit of legislation.
>>>
>>>
>>>I think it is a very bad decision, but not even in the top ten.
>>>
>>>
>>>-- 
>>>Prof. Steven D. Jamar                     vox:  202-806-8017
>>>Director of International Programs, Institute for Intellectual Property and 
>>>Social Justice

Re: Hobby Lobby Question

[Levinson, Sanford V]

I do not understand why the complicity with evil rationale doesn't apply to 
taxpayers ( like Thoreau). The argument against is either that it would unduly 
burden the state to set up a c.o. system for tax protesters or that it would 
invite strategic misrepresentation. Are these sufficiently "compelling 
interests" to overcome undoubtedly sincere (and correct) beliefs that one's 
taxes are supporting oppression at home and around the world (as well as a lot 
of good things). As Uwe Reindhart points out, the craziest American 
exceptionalism is that workers are dependent on their employers for medical 
insurance. Hobby Lobby is another good argument for tax-financed single-payer 
coverage.

Sandy

Sent from my iPhone

On Jun 30, 2014, at 11:48 PM, "Steven Jamar" 
mailto:stevenja...@gmail.com>> wrote:

The court accepts without inquiry the assertion that the complicity with evil 
theory is the problem that leads to the substantial burden. It merely accepts 
the claim that the adherents cannot comply because of the complicity theory.  
It then bootstraps that there would be costs of non-compliance.
At the core the court buys the argument that an attenuated complicity can be 
the basis of a substantial burden.

Sent from Steve's iPhone


On Jul 1, 2014, at 12:20 AM, Arthur Spitzer 
mailto:artspit...@gmail.com>> wrote:

I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably 
requires all courts to simply accept the religious adherent's claim that the 
burden is substantial."  The majority analyzed whether the burden was 
substantial and found it was because the ACA would impose millions of dollars 
of financial penalties on the plaintiffs if they did not comply.  Slip op. at 
32.  I don't think the Court tells us whether a $100 fine would have been a 
substantial burden.  I'm curious what in the opinion Steve points to in support 
of the proposition that courts may not evaluate the substantiality of a burden, 
especially considering that the Court did evaluate that question, as an 
empirical matter, in this case.

Art Spitzer


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



On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar 
mailto:stevenja...@gmail.com>> wrote:
Brown eliminated the constitutional doctrine of separate but equal - in the 
Brown decision just for education, but it was applied to all racial 
classifications.  The 1964 Civil Rights Act accomplished much more, of course, 
but the Brown decision matters a lot.

So it is with numerous decisions.  Hobby Lobby's acceptance of the complicity 
with evil theory in this attenuated context and its ruling that arguably 
requires all courts to simply accept the religious adherent's claim that the 
burden is substantial, could dramatically change the landscape of RFRA 
interpretation federally and by example at the state level.These underlying 
principles could also be restricted by later decisions or expanded.  It is a 
very troubling expansion of RFRA beyond what was intended originally.  But that 
is hardly unique to this bit of legislation.

I think it is a very bad decision, but not even in the top ten.


--
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://sdjlaw.org


"For all men of good will May 17, 1954, came as a joyous daybreak to end the 
long night of enforced segregation. . . . It served to transform the fatigue of 
despair into the buoyancy of hope."


Martin Luther King, Jr., in 1960 on Brown v. Board of Education








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Please note that messages 

RE: Hobby Lobby Question

[Volokh, Eugene]

   The Court also said that there’s a compelling government 
interest in preventing race discrimination in employment, even though there are 
literally millions of people who are exempted from Title VII (since they work 
for employers who have fewer than 15 employees).  Is such gross underinclusion 
relevant to the issue of compelling interest?  If so, does it keep the interest 
from being compelling, and entitle religiously objecting employers with more 
than 15 employees to an exemption from Title VII?

   The Court has also said that there’s a compelling government 
interest in collecting federal income taxes, even though there are literally 
millions of people who pay no net federal income tax.  Is such gross 
underinclusion relevant to the issue of compelling interest, to the point that 
people who object to paying certain kinds of taxes are entitled to an exemption 
from federal text law?

   The Court has also rejected a claim of religious exemption from 
the draft (for people who oppose only unjust wars, and therefore aren’t 
entitled to a statutory exemption), and has been understood as saying that 
there’s a compelling government interest in raising armies, even though there 
are literally tens of millions of people who aren’t eligible for the draft.  Is 
such gross underinclusion relevant to the issue of compelling interest, to the 
point that people who object to unjust wars really are entitled to a draft 
exemption?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Tuesday, July 01, 2014 5:04 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

The Court assumed that there is a compelling interest in covering 
contraceptives, even though there are literally millions of women whose 
policies are exempted from the mandate under the ACA. Do we all agree that such 
gross underinclusion is irrelevant to the issue of compelling interest?

Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902

My recent article, Just Another Brick in the Wall: The Establishment Clause as 
a Heckler's Veto, is available at 
SSRN
"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)
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RE: Hobby Lobby Question

[Alan Brownstein]

Eugene read my mind and wrote exactly what I was going to write. Maybe gross 
underinclusion isn't entirely irrelevant, but standing alone it has little 
bearing on whether the state's interest is compelling or not for religious 
liberty exemption purposes.



Alan


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Tuesday, July 01, 2014 8:09 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

   The Court also said that there’s a compelling government 
interest in preventing race discrimination in employment, even though there are 
literally millions of people who are exempted from Title VII (since they work 
for employers who have fewer than 15 employees).  Is such gross underinclusion 
relevant to the issue of compelling interest?  If so, does it keep the interest 
from being compelling, and entitle religiously objecting employers with more 
than 15 employees to an exemption from Title VII?

   The Court has also said that there’s a compelling government 
interest in collecting federal income taxes, even though there are literally 
millions of people who pay no net federal income tax.  Is such gross 
underinclusion relevant to the issue of compelling interest, to the point that 
people who object to paying certain kinds of taxes are entitled to an exemption 
from federal text law?

   The Court has also rejected a claim of religious exemption from 
the draft (for people who oppose only unjust wars, and therefore aren’t 
entitled to a statutory exemption), and has been understood as saying that 
there’s a compelling government interest in raising armies, even though there 
are literally tens of millions of people who aren’t eligible for the draft.  Is 
such gross underinclusion relevant to the issue of compelling interest, to the 
point that people who object to unjust wars really are entitled to a draft 
exemption?

   Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Tuesday, July 01, 2014 5:04 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

The Court assumed that there is a compelling interest in covering 
contraceptives, even though there are literally millions of women whose 
policies are exempted from the mandate under the ACA. Do we all agree that such 
gross underinclusion is irrelevant to the issue of compelling interest?

Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902

My recent article, Just Another Brick in the Wall: The Establishment Clause as 
a Heckler's Veto, is available at 
SSRN
"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)
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