Re: Hobby Lobby Question
I assume that the use of quotes around constitutional fact is meant to highlight that the phrase is used as an analogy in this situation, which is governed by a statute and not the Constitution. But partly for that reason, I think the danger of a jury's refusal to follow a proper instruction on the irrelevance of a belief's rationality to its sincerity is not likely to be very significant (since firstly, juries don't usually ignore a judge's instructions, and secondly, a court can also enter a JNOV if the jury has obviously gotten it wrong). If the determination of sincerity is left to courts as some kind of über-fact then I think we really do tread dangerous ground, since that determination will too often be made on hidden policy agendas, for administrative convenience, or other factors that we really don't want to impinge on religious liberty, to say nothing of investing the courts in determining issues of religion that the Constitution forbids them to do. On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Maybe this is a constitutional fact, like NY Times actual malice. We need to be careful that a trier of fact does not conclude that a party isn't sincere just because the trier of fact thinks the belief is so obviously wrong that a reasonable person couldn't believe it. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jul 1, 2014, at 8:30 AM, Vance R. Koven 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 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 ___ 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. -- Vance R. Koven
Re: Attenuation
Perry: I think this is a very important, and contestable, assumption: Hobby Lobby is using religious reasoning, not secular reasoning [in determining what sort of connection constitutes prohibited complicity]. What is the basis for that assumption? In fact, virtually all theological analysis I've ever seen about questions of complicity does *not *consist of what we would ordinarily call religious reasoning -- such as whether God exists, whether there's a heaven or a hell, whether God commands a particular thing, or whether and when an embryo has a soul or is a human life -- questions that secular authorities are incapable of or forbidden from assessing. Instead, that reasoning quite closely resembles the ordinary sort of reasoning that nonreligious authorities -- academic, legislative, and judicial -- make all the time about complicity and responsibility and culpability of accessories. (Of course, the exception is that, within the religious assessment, the existence and importance of the underlying evil -- e.g., prevention of implantation of a fertilized embryo -- is itself a religious question. I am referring, instead, to the questions of attenuation/proximate cause/responsibility/etc.) On Tue, Jul 1, 2014 at 5:47 PM, Perry Dane d...@crab.rutgers.edu wrote: Steve Jamar writes: I do not reject the legitimacy nor the religiousity of the plaintiff’s beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor “legitimacy” of the beliefs. With all due respect, though, I have always found the attenuation claim the least convincing of the arguments against Hobby Lobby's position. As the majority opinion suggests, and as many of us have been saying for a long time, Hobby Lobby needs to be understood as putting on the table two distinct religious claims: (1) Certain forms of contraception should not be used. (2) Hobby Lobby and/or its owners are religiously prohibited from signing insurance contracts that cover those same forms of contraception. Of course, Hobby Lobby has religious reasons taking it from claim (1) to claim (2). But it's not the business of the secular state to second-guess the quality of that reasoning. In fact, as far as the secular state is concerned, claim (1) should be essentially irrelevant. All that really counts is claim (2). Imagine an observant Jewish prison inmate who asks for kosher food. The prison administration tells him, We're happy to give you kosher food. We'll also be sure not to give you meat meals and dairy meals within however many hours of each other you think is religiously significant. But we can't give you separate (or disposable) plates for your meat and dairy meals. That would just be too expensive or complicated for us to do. The prisoner responds, That's not good enough, I'm afraid. As a matter of Jewish law, hot foot transfers its 'taste' to plates, which in turn transfer the 'taste' to other food served on those plates, even if the plates are thoroughly washed between uses. So I need separate or disposable plates. (There are more technicalities that I won't get into.) The prison administration replies, That's just silly. No 'taste' gets transferred. We understand that you have religious reasons for not eating meat and dairy food together, and we'll grant you that accommodation, but this argument you're making about plates and such is just too attenuated. I suspect that most courts, and most of us, would reject this defense of attenuation. (This has nothing to do with arguments over compelling interest, less restrictive means, etc.) Jewish law's conclusion [that (1) a ban on mixing dairy and meat foods entails (2) a ban on using the same dishes for dairy and meat foods] might be wacky from a secular or scientific point of view, but it's not up to the secular state to second-guess that view. Indeed, all the secular state needs to know is that the prisoner has a religious need not to eat meat and dairy meals from the same plates. If the prisoner is to lose, it will not be because his claim is too attenuated. I think the hangup in the Hobby Lobby context is this: We all appreciate that Jewish law and other system of religious ritual law often conceptualize the world in wacky-seeming ways very different from ordinary reasoning. The separate-plates rule is the least of it. (I say all this with all due respect; I guide some of my life by those wacky conceptualizations.) Hobby Lobby, on the other hand, seems to be using a form of argument (complicity with evil) that has a much clearer secular analogue. But that's deceptive. Hobby Lobby is using religious reasoning, not secular reasoning. That doesn't mean it should win at the end of the day. But it does
Re: Hobby Lobby Question
Thankfully, this issue is now beside the point, but just to repeat, the premise is mistaken: There are not literally millions of women whose policies are exempted. Almost all women in the United States are or soon will be entitled to cost-free contraceptive coverage in their insurance plan. On Tue, Jul 1, 2014 at 8:04 PM, Rick Duncan nebraskalawp...@yahoo.com wrote: The Court assumed that there is a compelling interest in covering contraceptives, even though there are literally millions of women whose policies are exempted from the mandate under the ACA. Do we all agree that such gross underinclusion is irrelevant to the issue of compelling interest? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, *Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto*, is available at SSRN And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform --Dick Gaughan (from the song, Thomas Muir of Huntershill) -- *From:* Scarberry, Mark mark.scarbe...@pepperdine.edu *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *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
RE: Attenuation
And in the standard complicity-with-evil analyses, including religious ones, the degree of connection that's permissible is affected by the perceived gravity of the harm, which as Marty notes is a religious determination. Gravity of the harm, for example, is part of the material cooperation analysis in Catholic thought, which essentially involves a proportionality test. So even the reasoning this degree of connection is too much is a product, in part, of the religious determination. I think if people shared the Greens' belief that the emergency contraceptives kill a human person, they'd be more sympathetic to the claim. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Perry Dane [d...@crab.rutgers.edu] Sent: Wednesday, July 02, 2014 10:20 AM To: Marty Lederman Cc: Law Religion issues for Law Academics Subject: Re: Attenuation Marty, I would define religious reasoning as reasoning within a religious discourse or tradition used by religious people to reach religiously-significant conclusions. Religious reasoning need not be metaphysical or transcendent or explicitly spiritual. And it can certainly resemble analogous secular discourse. But it is still distinct. Three observations: 1. Look again at my Jewish separate-plates example. Rabbinic discussions of these sorts of questions rarely involve discussions about whether God exists, whether there's a heaven or a hell, whether God commands a particular thing, or whether and when an embryo has a 'soul' or is a 'human life.' So I return to my question: Should the prison authorities be heard to argue that the connection between the underlying rule against mixing dairy and meat and the subsidiary conclusion that those foods must be eaten on separate plates is just too attenuated? 2. It's a staple of first-year torts that reasoning about proximate cause is inextricably intertwined with various policy and other concerns. And even if we disagree with that, and adopt Ernie Weinrib's view that proximate cause reasoning is built into the structure of tort law, that would still suggest that it is embedded in a specific, constrained, discourse that follows certain rules and makes certain very deep assumptions peculiar to that discourse. That would suggest that there exist a whole bunch of constrained discourses about notions of causation, responsibility, and the like. Each of those constrained discourses is, explicitly or implicitly, grounded in certain assumptions and world-views. For example, in Peter Singer's thoroughgoing utilitarian discoursehttp://www.utilitarianism.net/singer/by/1972.htm, each of us has a direct affirmative responsibility to try to alleviate famines and other forms of suffering around the world, since if it is in our power to prevent something bad from happening, without thereby sacrificing anything of comparable moral importance, we ought, morally, to do it. That is certainly a more radical view than that taken by tort law, or by more deontological moral discourses, or even by Hobby Lobby. Now, in the light of all that, it seems to me quite reasonable to assume that Hobby Lobby is (however inarticulately) reaching its conclusions about causation and responsibility based on forms of reasoning or instinct embedded in its own religious assumptions and priorities, though loosely analogous, of course, to other forms of reasoning about causation and responsibility. 3. Note that in the Establishment Clause context, we're (usually rightly, I think) quite willing to describe certain propositions (such as creation science) as religious even though their proponents claim they are not and in fact carefully try to exclude all mention of whether God exists, whether there's a heaven or a hell, whether God commands a particular thing, or whether and when an embryo has a 'soul' or is a 'human life.' On 07/02/2014 10:32 am, Marty Lederman wrote: Perry: I think this is a very important, and contestable, assumption: Hobby Lobby is using religious reasoning, not secular reasoning [in determining what sort of connection constitutes prohibited complicity]. What is the basis for that assumption? In fact, virtually all theological analysis I've ever seen about questions of complicity does not consist of what we would ordinarily call religious reasoning -- such as whether God exists, whether there's a heaven or a hell, whether God commands a particular thing, or
Re: Attenuation
Steve Jamar wrote: [1] How about owning stock in companies that make and sell contraceptives? They had to sign a contract to do that. [2] The distance between doing the improper thing -- selling, paying for, using contraceptives -- and buying general health insurance with coverages mandated by the government is attenuated sufficiently for me. However, I understand how one can rhetorically manipulate these matters as Prof. Dane (and I) have done. And that is fully fair game and 5 justices agreed with one rethorical approach and 4 did not. 5 thought religion under RFRA should trump the other values (as a matter of statutory interpretation); 4 did not. Point 1 simply confirms that we all draw have to draw lines of causation and moral responsibility somewhere, and those different lines will be embedded in a variety of discourses and grounded in a variety of different assumptions. As to point 2, I don't think that 5 justices agreed with Hobby Lobby's conclusions about causation and moral responsibility. They simply, and correctly, accepted them as religious views. It's as if Hobby Lobby had just said, for religious reasons, we can't sign a document that alludes to 'Plan B, Ella, or intrauterine devices.' It's just something about those words. ___ 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.
How Far Does Hobby Lobby Decision Potentially Reach?
Good morning, In reviewing the Hobby Lobby decision, and particularly its extent, I can't help but wonder how far this decision goes. While much of the focus is on the contraceptives themselves, it seems like Hobby Lobby may be to particular contraceptives as Employment Div. v. Smith was to peyote. While the majority claims the decision is narrow, the circumstances seem very broad. Here there is a closely-held corporation with 13,000 employees whose owners object to providing insurance that makes available contraception to be prescribed by a physician and where the actual usage will never be known by the owner (and indeed there's no scientific consensus as to whether the contraception causes abortion) as it is protected by HIPAA. Anything within that range would seem to be fair game. Certainly a closely-held corporation with 5,000 employees might object (under this decision I no longer need to qualify this by saying that the owners do the act since the will of the corporation and owners are one and the same, right?) to directly providing same-sex couples with federally mandated benefits, right? And then we enter what appear to be uncharted waters where you have a potential Title VII case brought by a religious employee (of Religion A) who claims that she is being discriminated against by the religious secular corporation (of Religion B) and the EEOC takes the case as what we could consider to be a co-plaintiff. Could the corporation defend itself against the EEOC by claiming RFRA? Would the Corporation defeat the Individual employee? Apparently the Circuits are split in whether RFRA can be used a defense in private suits (see the following Virginia Law Review note by Shruti Chaganti - http://www.virginialawreview.org/sites/virginialawreview.org/files/343.pdf ), and I'm wondering if Hobby Lobby will be used the same way. Any thoughts would be greatly appreciated. Michael Peabody, Esq. Editor ReligiousLiberty.TV ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see 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.
Degrees of complicity
On Jul 2, 2014, at 7:45 AM, Steven Jamar stevenja...@gmail.com wrote: How about owning stock in companies that make and sell contraceptives? They had to sign a contract to do that. Good question, Steve: Let’s narrow this down a bit—remember, HL only objects to “morning-after” contraception and IUDs. And yes, HL made investments in those companies that made, among other things, both “morning after” pills and IUDs. Whether or not they received any dividends really isn’t germane, I think—the fact that they gave money makes them complicit and nullifies a claim of religious sincerity to my mind. But if they do accept dividends wouldn’t it compound complicity? Further, they pay money for goods made in China, a country that still routinely forces women to abort in a state backed population control effort, even though China says they don’t do that. How many steps removed does it have to be to not count as complicity? Can HL have its exemption revoked and fines imposed because their “sincerely held religious belief” is a moral sham? If the SCOTUS doesn’t scrutinize how “sincere” a religious belief is, but accepts on prima facia that the belief is sincere, don’t they have an obligation to vacate the exemption once similar complicity in said “evil” is proven? This decision was a huge game changer; previously other folks with sincerely held religious beliefs had to content themselves with not doing “evil” themselves, but not denying said “evil” to others under their employment. Now a group of people can withhold medically necessary and legally mandated treatment options. If you’re against blood transfusions, don’t have one, but don’t block others from having them. But they can now opt out of providing Plan B or IUDS to women who need them medically even though those women don’t agree that they are abortive. The fact that medical science doesn’t think they’re abortive doesn’t matter. Religious belief once again trumps science and law. How sad. Once again, I am not a lawyer. I just happen to have a (non-functioning) uterus. Jean ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: How Far Does Hobby Lobby Decision Potentially Reach?
On Jul 2, 2014, at 9:24 AM, Michael Peabody peabody...@gmail.com wrote: (and indeed there's no scientific consensus as to whether the contraception causes abortion) Problem with this sentence on two levels: First, contraception is a pretty broad term, and includes things like abstinence, barriers, hormone therapy. Literally defined, contraception prevents or impedes conception. Abortion, on the other hand is medically defined as the premature exit of the product/s of conception. Abortion can be induced or spontaneous. BTW, about 1/2 of all conceptions are aborted spontaneously, and if one believes it was God’s will, then that makes one’s God the busiest abortion provider in the universe. As for the claim that there’s no scientific consensus as to whether “the contraception” (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes abortion, that’s because it’s damn hard to conduct ethical, empirical tests whether or not a zygote was prevented from implanting in the uterine wall tissue, or if it was ejected during induced menses. Remember, there can be no consensus unless there are multiple, peer reviewed experiments under rigorous scientific processes. Not many women are willing to have their menstrual effluvia collected for scientific examination. Not many scientists think it important enough to find out, either. Not many sources of funding for any kind of scientific research of any kind, much less something so female-centric. Carry on. I’m just providing some uterine perspective here. Jean. TMI? Yeah. Deal with it. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: How Far Does Hobby Lobby Decision Potentially Reach?
Thanks Jean - I was trying to avoid getting into a discussion as to the particulars of the contraception (which is the vehicle for this particular case) by relying on Justice Alito's statement on page 9, footnote 7, which dismissed the dispute over what the drugs actually do (distinguishing between how the company and regulators viewed the drugs). In other words, if the company owners believe it causes abortion, or the company owners believe that wearing blue hats on a Monday attracts evil spirits, the Court would apply the same analysis. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: How Far Does Hobby Lobby Decision Potentially Reach?
We’re dealing with some pretty icky stuff, here; zygotes, embryos, fetuses, menstruation, uterine tissues…but if decisions that affect those icky things are made, we really should be willing to speak about them. Now what gets me is there’s an exemption for blood transfusions and vaccines—equally valid religious exemptions exist for those in that same statement if I recall. It seems to me that Justice Alito gets to pick and choose which scientific facts are ignored based on his own beliefs. Jean “Now I’m not stupid but I can’t understand/ Why she walks like a woman but talks like a man…” (From “Lola”, by The Kinks) On Jul 2, 2014, at 9:54 AM, Michael Peabody peabody...@gmail.com wrote: Thanks Jean - I was trying to avoid getting into a discussion as to the particulars of the contraception (which is the vehicle for this particular case) by relying on Justice Alito's statement on page 9, footnote 7, which dismissed the dispute over what the drugs actually do (distinguishing between how the company and regulators viewed the drugs). In other words, if the company owners believe it causes abortion, or the company owners believe that wearing blue hats on a Monday attracts evil spirits, the Court would apply the same analysis. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see 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: Hobby Lobby Question
I have long thought, as Sandy does, that Naim v. Naim was a disgrace. It is hardly proof that Brown “did absolutely nothing,” though. Even Gerald Rosenberg’s flawed analysis of Brown does not go that far. Looking more closely at Naim, it seems somewhat less outrageous that the Court waited for better cases, which ultimately came in McClaughlin and Loving. Naim was a Chinese citizen who had married a white woman in North Carolina. She sued for divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s eligibility for U.S. citizenship. Even if the Virginia law was held unconstitutional, the lower court could still have granted an annulment or divorce. The husband’s lawyer did not argue that the racial classification was unreasonable, according to an article in 42 American Journal of Legal History, 119. Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably reflecting their fear that the post-Brown slogan “integration means intermarriage” would gain added credence and endanger compliance with Brown. None of this excuses the Court for ducking the issue, but perhaps it helps explain why the Court waited for a prosecution of an interracial couple before deciding the issue. For a good overview, see Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Monday, June 30, 2014 7:20 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby Question Art raises an interesting point. For better and worse, Brown in 1954 did absolutely nothing, and Brown II settled for the (in)famous “all deliberate speed.” It was the Civil Rights Movement, Lyndon Johnson, and Congress that fundamentally changed things, not the Supreme Court that in 1956 engaged in the disgraceful evasion of Naim v. Naim. I’m not sure how much credit Roe should get for reforming American abortion law. That’s the great question raised by Gerry Rosenberg’s book. Same-sex marriage is quite unlike these, incidentally, in that the Court can, should it wish to, make it a possibility nation-wide simply by the “performative utterance” of declaring that such marriages can’t be barred by states. There will, even in Oklahoma and North Dakota, be ministers willing to preside and civil servants who will feel obligated to sell the marriage licenses. It’s far less complicated, in terms of changing the behavior of thousands upon thousands low-visibility officials, than school segregation. But I also want to emphasize that the utter cynicism is to suggest, while maintaining an iniquitous status quo, that the answer lies in Congress. The strongest argument for judicial intervention is indeed the argument of John Hart Ely that it is foolish to consign unpopular groups to legislative mercy. That was, incidentally, what was so offensive about Frankfurter in 1962 saying that the folks in Memphis should “sear the consciences” of the Tennessee legislators that never in a million years would have voluntarily given up their illegitimate power as a result of malapportionment. “Power corrupts,” as John P. Roche once put it, “and the prospect of losing power corrupts absolutely.” So I don’t know how much we disagree after all. sandy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer Sent: Monday, June 30, 2014 8:51 PM To: Law Religion issues for Law Academics Subject: Re: Hobby Lobby Question With respect, I think Sandy's response (I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility) is unacceptable. It was politically impossible to get southern states to integrate their public schools in 1954. Did that make it constitutionally unnecessary? It was politically impossible to get many states to allow abortions in 1973. But it happened. It is politically impossible to get Oklahoma (or Congress) to agree to same-sex marriage. Does that make it constitutionally unnecessary? The life of the law should be experience, and experience teaches that the nation obeys the law. At least mostly, and at least so far. And Congress can amend RFRA if The People don't like it. Art Spitzer Warning: this message is subject to monitoring by the NSA. On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I think that it's utter cynicism to suggest possibilities that are politically impossible. The life of the law should be experience and not arid logical possibility. Sandy Sent from my iPhone On Jun 30, 2014, at 8:05 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: With regard to Sandy’s
RE: How Far Does Hobby Lobby Decision Potentially Reach?
But aren't the forms of contraception that Hobby Lobby objects to specifically marketed as contraception that can prevent implantation? I know that Plan B is-whether IUDs prevent implantation is perhaps a little more controversial. For people who believe that life begins at fertilization, a form of contraception that prevents implantation is a problem. Tessa From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Jean Dudley Sent: Wednesday, July 2, 2014 12:43 PM To: Law Religion issues for Law Academics Subject: Re: How Far Does Hobby Lobby Decision Potentially Reach? On Jul 2, 2014, at 9:24 AM, Michael Peabody peabody...@gmail.commailto:peabody...@gmail.com wrote: (and indeed there's no scientific consensus as to whether the contraception causes abortion) Problem with this sentence on two levels: First, contraception is a pretty broad term, and includes things like abstinence, barriers, hormone therapy. Literally defined, contraception prevents or impedes conception. Abortion, on the other hand is medically defined as the premature exit of the product/s of conception. Abortion can be induced or spontaneous. BTW, about 1/2 of all conceptions are aborted spontaneously, and if one believes it was God's will, then that makes one's God the busiest abortion provider in the universe. As for the claim that there's no scientific consensus as to whether the contraception (Plan B? The Pill? IUD? Condoms? Pulling out? ) causes abortion, that's because it's damn hard to conduct ethical, empirical tests whether or not a zygote was prevented from implanting in the uterine wall tissue, or if it was ejected during induced menses. Remember, there can be no consensus unless there are multiple, peer reviewed experiments under rigorous scientific processes. Not many women are willing to have their menstrual effluvia collected for scientific examination. Not many scientists think it important enough to find out, either. Not many sources of funding for any kind of scientific research of any kind, much less something so female-centric. Carry on. I'm just providing some uterine perspective here. Jean. TMI? Yeah. Deal with it. No virus found in this message. Checked by AVG - www.avg.comhttp://www.avg.com Version: 2013.0.3485 / Virus Database: 3955/7691 - Release Date: 06/17/14 Internal Virus Database is out of date. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: How Far Does Hobby Lobby Decision Potentially Reach?
On Jul 2, 2014, at 10:33 AM, Tessa Dysart tdys...@regent.edu wrote: But IUDs do change the uterine lining, http://www.webmd.com/sex/birth-control/intrauterine-device-iud-for-birth-control, raising the question for some people as to whether they can act to prevent implantation, assuming fertilization occurs. As for Plan B Ella, the websites for both products contain documents that do say that they may work to prevent implantation--Ella (see p. 12: https://pharma.afaxys.com/afaxys/assets/pdf/ella_FPI.pdf); Plan B (click on “How Plan B Works” http://www.planbonestep.com/faqs.aspx). One of the URLs that Dawn Johnson provided calls into question the information on those very sites; http://www.nytimes.com/2012/06/06/health/research/morning-after-pills-dont-block-implantation-science-suggests.html?_r=0 As of 2012, what exactly Ella does is up for question. Plan B, well, it delays ovulation, and (Ick trigger warning!) causes cervical mucus to thicken, impeding sperm from reaching the ovum. But of course now the Green family has a supreme court pass to ignore this fact, and still make contributions to companies that make morning after pills and IUDs, and possibly get monetary dividends from said contributions. Jean “Liar! LIAR! I’m NOT a witch, I’m your WIFE!” —Valerie, wife of Miracle Max, Princess Bride. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see 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.
