Re: Substantial burden and requirements imposed on people who choose to go into certain businesses

[Gaubatz, Derek]

Marty,
If I understand your position, it seems to be that the government has the final 
say to define what are the "necessary" components of any occupation.   Under 
this view, so long as the government, in its wisdom, defines something as 
necessary to a job, al‎l citizens must fall in line and either violate their 
sincerely held religious beliefs if it conflicts with the government defined 
"necessary" component of the job or find one of the jobs that the government, 
in its inefficiency, hasn't gotten around to regulating yet.
‎If this is your view, what gives you confidence that the government won't one 
day decide that your sincerely held religious beliefs won't conflict with the 
government's definition of what is necessary to pursue your occupation?
Grace and peace to you,
Derek
From: Marty Lederman
Sent: Sunday, August 16, 2015 7:16 PM
To: Law & Religion issues for Law Academics
Reply To: Law & Religion issues for Law Academics
Subject: Re: Substantial burden and requirements imposed on people who choose 
to go into certain businesses


Unless there's something more about Betty that I don't know, then no, I think 
there's no substantial burden on her to violate her religious precepts, at 
least if she can get a decent return on her business.

On your broader question, if a necessary component of the job is something that 
your religion prohibits, and if you care about not violating religious 
injunctions, then it simply makes no sense to say that that "particular 
occupation is the one that best fits" your "skills and temperaments."  In which 
case the denial of an exemption does not impose a substantial burden on the 
exercise of your religion, at least not when it is required before you develop 
any serious reliance interests to the contrary.

For example, assume you have a religious objection to doing anything in 
conjunction with abortion services -- delivering their mail, putting out their 
fires, protecting them from hoodlums, driving people to their door, checking 
their gas & electric levels, etc.  Well, in that case, your religion precludes 
you from not only one but many professions, including all of the classic 
"common carrier" positions -- police officer, firefighter, cab driver, bus 
driver, meter reader, postal deliverer, FedEx driver, etc.

Substantial burden on your religion because these professions aren't what you 
want them to be?  Because you want to be able to do 95% of one of these jobs, 
rather than 100% of the other two gazillion jobs that are out there?  I don't 
think so.

On Sun, Aug 16, 2015 at 6:49 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
   1.  Marty, let me try to pin you down on this:  Regardless of 
whether the burden on Betty is less than on Ahmed and Charles, is your position 
that the burden on Betty is not “substantial” enough to qualify for a 
Sherbert/Yoder-based religious exemption regime (setting aside whether the 
government can justify denying the exemption under strict scrutiny)?

   2.  Let’s set aside the special case of government employment, 
where the government acting as employer may well have more power than the 
government acting as regulator (much as it does when it comes to the Free 
Speech Clause).  Why wouldn’t it indeed be a substantial burden to be precluded 
from working in a small percentage of jobs in the economy?  Occupations and 
lines of business aren’t fungible, and for many people one particular 
occupation is the one that best fits their skills, temperaments, intellectual 
interests, and felt economic needs.  Why not conclude – assuming we’ve chosen 
to have a Sherbert/Yoder-type of regime – that it is indeed a “substantial 
burden” when the government requires a person to violate his religious beliefs 
in order to participate in a category of private-sector job, so that the 
government have to give an exemption unless it can show that denying the 
exemption is really necessary?

   Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of Marty Lederman
Sent: Sunday, August 16, 2015 3:09 PM
To: Law & Religion issues for Law Academics
Subject: Re: Substantial burden and requirements imposed on people who choose 
to go into certain businesses

"I think that requirements that keep new entrants of certain religions out of 
various lines of business are substantial burdens."

This cannot possibly be correct.  It's not a substantial burden on one's 
religion simply to be precluded from working in a small percentage of jobs in 
the economy because the very nature of those jobs is inconsistent with one's 
religion.  Assume, for instance, that my religion prohibits me from being 
involved in capital punishment.  That would exclude me from a handful of 
government jobs, but I think I'd be perfectly ok.  That is to say -- the 
effective exclusion from thos

Re: Religious organizations, tax-exempt status and same-sex marriage

[Gaubatz, Derek]

So if I understand this right, religious institutions shouldn't take the Obama 
Administration's Solicitor General at his word when he says tax exempt status 
will be an "issue" or they should just assume he gave an incompetent answer?
I don't think it's "fear-mongering"‎ to actually take him at his word that this 
is the direction many in the the Obama Administration want to go.  There are 
already cases where organizations are denied access‎ to use of public 
facilities for adhering to the traditional Biblical view of homosexual conduct; 
it's not unreasonable to think a future position will be taken that such 
organizations should also be denied tax exempt status.  And the history of CLS 
v Martinez, Hobby Lobby and Hosanna-Tabor shows that this administration does 
not have a robust conception of religious liberty.
More likely is that Verrilli unconsciously admitted a goal that the 
Administration (and some on this list) wish he hadn't ‎admitted yet because 
they don't think the public is fully ready for that step yet.

From: Ira Lupu
Sent: Wednesday, April 29, 2015 10:12 PM
To: Law & Religion issues for Law Academics
Reply To: Law & Religion issues for Law Academics
Subject: Re: Religious organizations, tax-exempt status and same-sex marriage


Verrilli gave a terrible answer. The IRS ruled in Bob Jones (and in the 
companion case, Goldsboro Christian Schools) that these schools no longer 
qualified as charitable organizations under IRC sec. 501(c)(3).  The IRS was 
moved in large part by a concern that all-white Christian academies would 
undermine the racial integration of public schools.  Denying tax exempt status 
meant that contributions to these schools, which racially discriminated against 
students, would no longer be deductible. The schools would also face other 
expensive tax consequences.

The IRS has never extended its reasoning in the Bob Jones case to any religious 
organization that discriminates based on sex, sexual orientation, etc.  There 
is no reason to believe that it would act against faiths that reject same sex 
marriage,  any more than it would act against a faith that rejected divorce, 
inter-faith marriage, etc.  This is just more fear-mongering.



On Wed, Apr 29, 2015 at 9:39 PM, Brad Pardee 
mailto:bp51...@windstream.net>> wrote:
In an article from the Weekly Standard, the question was raised about the 
implications for religious organizations losing their tax-exempt status if they 
continue to oppose same-sex marriage.  The article talked about the case of Bob 
Jones University v. United States (1983), where they lost their tax-exempt 
status based on their opposition to interracial dating.  Given the number of 
instances I've seen where parallels are drawn between interracial relationships 
and same-sex relationships, it seems realistic to ask if religious 
organizations would be similarly stripped of their tax-exempt status if the 
Supreme Court finds a constitutional right to same-sex marriage.  The article 
includes this piece of discussion between Justice Samuel Alito and Solicitor 
Donald Verrilli Jr.

JUSTICE ALITO: Well, in the Bob Jones case, the Court held that a college was 
not entitled to tax-exempt status if it opposed interracial marriage or 
interracial dating. So would the same apply to a university or a college if it 
opposed same-sex marriage?
GENERAL VERRILLI: You know, I -- I don't think I can answer that question 
without knowing more specifics, but it's certainly going to be an issue. I -- I 
don't deny that. I don't deny that,
JUSTICE ALITO: It is -- it is going to be an issue.

http://www.weeklystandard.com/blogs/obama-admin-religious-organizations-could-lose-tax-exempt-status-if-supreme-court-creates-constitutional-right-same-sex-ma

What is the consensus of this list?  Would a ruling in favor of same-sex 
marriage lead to the same requirement that religious organizations accept 
same-sex marriage to avoid losing their tax exempt status, or would the 
religious freedom provisions of the First Amendment prevail here where they did 
not prevail where Bob Jones University is concerned?

Brad Pardee

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--
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law, Emeritus
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
Co-author (with Professor Robert Tuttle) of "Secular Government, Religious 
People" ( Wm. B. Eerdmans Pub. Co., 2014))
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByA

RE: Eugene's Blog Post on Liberals and Exemption Rights

[Gaubatz, Derek]

“"[l]iberals who opposed Smith in 1990 and supported RFRA in 1993 — including 
liberal organizations, professors, and politicians — largely continue to 
support religious exemptions for individuals, while opposing the extension of 
such exemptions to commercial businesses."

I’m not sure I’m seeing the principled distinction.   Do not many individuals 
depend for their livelihood on commercial businesses?   Why do liberals see the 
conscience of individuals like Sherbert or Thomas worthy of protection, but the 
conscience of an individual photographer, florist, baker, or bed and breakfast 
owner less worthy of protection?Justice Kagan, at least back in 1996 when 
she was in the Clinton White House, appeared to recognize that the consciences 
of individuals operating small commercial businesses was worthy of protection 
under a RFRA regime.   Commenting on the short shrift given to the claim of a 
Evelyn Smith who, for religious reasons, did not want to rent one of her units 
to a co-habitating couple, Kagan noted that the court’s reasoning was 
“outrageous.”   She wrote that it was “almost as if a court were to hold that a 
state law does not impose a substantial burden on religion because the 
complainant is free to move to another state.”   
http://www.brookings.edu/research/papers/2010/06/23-kagan-rogers


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Wednesday, April 01, 2015 2:25 PM
To: Law & Religion issues for Law Academics
Subject: Eugene's Blog Post on Liberals and Exemption Rights

Eugene has a new post up on Volokh Conspiracy entitled, "Many liberals’ 
(sensible) retreat from the old Justice Brennan/ACLU position on religious 
exemptions." The piece is lengthy, and I recommend folks read it in full, but I 
want to take issue with the following assertion at the heart of Eugene's 
analysis:
"Yes, religious objectors can use these RFRAs to try to get exemptions from 
antidiscrimination laws. But religious objectors could have done the same under 
the Sherbert-era Free Exercise Clause that the ACLU had long championed."

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/01/many-liberals-sensible-retreat-from-the-old-justice-brennanaclu-position-on-religious-exemptions/

Insofar as we're talking about discrimination in the commercial marketplace, 
which is the context generating almost all of the liberal concerns about 
exemptions today, I have to disagree with Eugene's characterization of the law 
in the Sherbert era. Indeed, I make precisely the opposite argument at length 
in Part II of the following piece: 
http://harvardlawreview.org/2015/01/the-born-again-champion-of-conscience/ 
("The Real Issue: The Unprecedented Expansion of Exemption Rights into the 
Commercial Realm").

Nowhere in his post does Eugene acknowledge either United States v. Lee, which 
is the only Sherbert-era case in which the Court explicitly addressed the issue 
of commercial exemptions, or Piggie Park, where the Court dismissed a 
commercial businesses' claim for an exemption from an antidiscrimination law as 
"patently frivolous." Instead, Eugene refers to Justice Brennan's pre-Sherbert 
dissenting opinion in Crown. Whatever Justice Brennan's views in 1961, it is 
difficult to understand how they are a better representation of the 
Sherbert-era law than the following explicit statement of the Court in Lee, 
which was joined by Justice Brennan (as was Piggie Park):
"When followers of a particular sect enter into commercial activity as a matter 
of choice, the limits they accept on their own conduct as a matter of 
conscience and faith are not to be superimposed on the statutory schemes which 
are binding on others in that activity. Granting an exemption from social 
security taxes to an employer operates to impose the employer's religious faith 
on the employees."

Accordingly, I don't think the ACLU's current position can be accurately 
described as a "retreat" from their support of Sherbert-era exemption rights. 
As Eugene notes in his post, the ACLU still opposes Smith and supports 
exemption rights outside the commercial context. As I note in my piece, this is 
also true of Americans United and the Brennan Center. The strong opposition of 
those organizations to extending exemption rights into the for-profit 
commercial realm has sometimes been misread as a reversal of their position on 
exemption rights in general (indeed, I myself have made that mistake in the 
past), but as I detail in the piece cited above, an examination of the full 
record shows that "[l]iberals who opposed Smith in 1990 and supported RFRA in 
1993 — including liberal organizations, professors, and politicians — largely 
continue to support religious exemptions for individuals, while opposing the 
extension of such exemptions to commercial businesses."
- Jim

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Re: Amazing what Hobby Lobby has wrought

[Gaubatz, Derek]

At least 3 circuits have already interpreted the federal RFRA to provide a 
defense in a case involving private parties and the Obama DOJ has also endorsed 
that position in the past.   So, the Indiana RFRA is not breaking new ground 
here‎.

From: Nelson Tebbe
Sent: Friday, March 27, 2015 5:59 PM
To: Law & Religion issues for Law Academics
Reply To: Law & Religion issues for Law Academics
Subject: Re: Amazing what Hobby Lobby has wrought




The Indiana law is not the same as the federal RFRA. This section of the new 
Indiana RFRA makes it applicable in suits between private parties:

"Sec. 9. A person whose exercise of religion has been substantially burdened, 
or is likely to be substantially burdened, by a violation of this chapter may 
assert the violation or impending violation as a claim or defense in a judicial 
or administrative proceeding, regardless of whether the state or any other 
governmental entity is a party to the proceeding... "

I imagine this provision was added to respond to Elane Photography and similar 
cases. There, a same-sex couple sued a photographer who refused to photograph 
their ceremony on religious grounds. The court ruled in favor of the couple. It 
turned away the state RFRA argument by the photographer on the ground that the 
state RFRA did not apply in suits between private parties.

It seems like members of the list disagree on whether Elane Photography 
involved "discrimination," but it clearly involved a civil rights law.

On Mar 27, 2015, at 3:46 PM, Richard Friedman 
mailto:rdfrd...@umich.edu>> wrote:

I've looked over the new Indiana law, and what jumped out at me was not that 
this looked like a law designed to allow people to decline to render services 
to others on the grounds of sexual orientation; it looks more like the original 
RFRA and a law designed to overcome the results of cases like Smith.  But I 
understand that context is everything.  Can somebody tell me whether the nature 
of the debate in Indiana indicated that the law was meant to accomplish the 
former objective?  And if so, how far did the intent reach?  Just to ministers 
being asked to participate in a marriage?  To cake makers or florists asked to 
facilitate the celebration of a marriage?  To dry cleaners who might not want 
to serve a gay person (but are there any people who claim a right not to do so 
on religious grounds)?

Rich Friedman

On Fri, Mar 27, 2015 at 3:28 PM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:
I agree with Ryan and Doug that RFRA is sound public policy and many of the 
outrageous claims about RFRA should be condemned. For instance, the claim that 
EMTs would be able to refuse service to gays and lesbians is just ludicrous.

Having said that, I think further enactment of RFRAs is impractical.  If by 
enacting these bills, we are going to increase the perception that religions 
want to harm gay and lesbians as individuals, that hurts the religions who 
teach both that we love our neighbor and uphold marriage as between a man and a 
woman (as most religions today teach).

A wiser course is for both sides to come together and build trust.  Otherwise, 
the polarization over these issues will deepen, and future generations will 
view support of religious rights as hate speech.  This was done in Utah, and 
can be done elsewhere. If one cannot express a view without being demonized by 
the other side, that chills freedom of speech.

"A house divided against itself cannot stand" and we should act with "malice 
toward none and charity towards all." Accusations that RFRA is based in animus 
are wrong.


On Fri, Mar 27, 2015 at 1:12 PM, Alan E Brownstein 
mailto:aebrownst...@ucdavis.edu>> wrote:
Three quick points:


1.   As Marty suggests below, if the Court had ruled in Hobby Lobby’s favor 
but issued a narrow opinion (narrow in its reasoning and holding) making it 
clear that the ruling in favor of Hobby Lobby gives no support to RFRA claims 
challenging anti-discrimination laws (all anti-discrimination laws) because 
those laws raise fundamentally different questions than the exemption sought in 
Hobby Lobby, there might be less opposition to state RFRA laws. But the Court 
failed to do that.


2.   When people perceive the political momentum behind a state RFRA law to 
be fueled by concerns that religious employers or operators of public 
accommodations will have to hire or serve gay and lesbian job applicants or 
clients, they will interpret the law as furthering that purpose even if, in 
fact, it is unlikely to be interpreted by a court to permit such 
discrimination. Certainly, liberal opponents of such laws may overstate their 
likely impact. But conservative commentators and advocates who describe state 
recognition of same-sex marriage and anti-discrimination laws protecting gays 
and lesbians against discrimination as the greatest threat to religious liberty 
in American history certainly feed the perception that current RFRA laws are 
intended to pr

RE: Amazing what Hobby Lobby has wrought

[Gaubatz, Derek]

And I don't think we want to create a society where we the only exercise of 
religion we protect is religious exercise that the elites are comfortable with. 
   Perhaps I'm misreading them, but it seems that many contributors to this 
list are only fans of protecting religious liberty in the milquetoast scenarios 
where it doesn't much matter to most people if the religious adherent gets to 
practice his or her faith.   I guess that's a nice start, but it doesn't 
exactly merit inclusion in the next edition of Profiles in Courage.The 
reality is that we live in a pluralistic society.   People who believe strongly 
in same sex marriage aren't going away in our society and people who hold to 
strong religious beliefs that require them to act in certain ways consistent 
with their faith when asked to participate in some aspect of a same sex 
marriage aren't going away either.Instead of just trying to drum one group 
into submission, I'd submit that there really are ways to accommodate both 
through a sensible legal regime that accommodates religious exercise without 
leading to open season against gay people.Doug and Eugene have offered 
thoughts along these lines  in the wedding vendor context that draw the line in 
different places. It would be encouraging to see more engagement with those 
sorts of ideas that recognize the reality of our pluralistic society and the 
need of a legal regime that can find ways to respect the diverse consciences of 
its citizens.The lesson that Hobby Lobby should have wrought is that it is 
really is possible to accommodate both the government interest and the 
conscience of the religious adherent in ways that respect the pluralistic 
nature of our society.


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Friday, March 27, 2015 4:29 PM
To: Law Religion & Law List
Subject: Re: Amazing what Hobby Lobby has wrought

There is a big difference between a regime where the law says you cannot or 
should not and a law that says its ok in the way people respond.

Most people do not sue most of the time every time their rights are infringed, 
so the "show me the cases" standard seems a bit off to me.

Nonetheless, I think most people will not take advantage of the anti-gay animus 
of the present impetus behind the law.  But that does not mean that that is the 
society we want to create - where people can legally exclude on the basis of 
such beliefs.

Steve

On Mar 27, 2015, at 2:54 PM, Doug Laycock 
mailto:dlayc...@virginia.edu>> wrote:


Show me a case. It just hasn't happened. We have a woman dead in Kansas for 
lack of a state RFRA; that's a real case. These wild discrimination 
hypotheticals are so far just that - wild hypotheticals. And probably that's 
all they will be for the future too.

Discrimination against gay customers is entirely legal in Indiana except in 
Indianapolis and Bloomington. That doesn't mean that it's happening, much less 
that businesses are discriminating and then offering religious justifications. 
The various Indiana reporters who have called me had not heard any reports of 
that kind of discrimination.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

--
Prof. Steven D. Jamar
Howard University School of Law
vox:  202-806-8017
fax:  202-806-8567
http://sdjlaw.org

"There are no wrong notes in jazz: only notes in the wrong places."
Miles Davis

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Re: bigotry and sincere religious belief

[Gaubatz, Derek]

Dear Greg,

If you or others are genuinely interested in exploring detailed arguments 
explaining why opposition to same sex marriage is not irrational bigotry, I 
would commend either the law review article or the longer book by Sherif 
Girgis, Robert P. George, and Ryan T. Anderson entitled "What Is Marriage?".
You might also read the brief recently filed in the 10th Circuit by Catholics, 
Southern Baptists, Lutherans, and Mormons that also seeks to rebut the claim 
that defense of marriage as being between one man and one woman is necessarily 
based on bigotry.

Grace and peace to you,
Derek

From: Greg Lipper
Sent: Thursday, February 27, 2014 8:57 PM
To: Law & Religion issues for Law Academics
Reply To: Greg Lipper
Subject: Re: bigotry and sincere religious belief


I would also add that Greg Sisk’s syllogism only works if (1) you are also 
willing to allow photographers, florists, caterers, bakers, etc. to refuse to 
work at mixed-race weddings, or (2) you conclude that refusal to participate in 
same-sex wedding ceremonies is somehow more worthy of protection than refusal 
to participate in mixed-race weddings.

As to the former, we as a society (or so I had thought) have concluded that we 
are unwilling to tolerate that type of discrimination, whatever its motivation.

As to the latter, I still haven’t seen a principled basis for saying that 
sexual-orientation-based discrimination is somehow more benign than race-based 
discrimination (be it in the context of marriage, marriage ceremonies, or 
otherwise). Perhaps this debate is hopelessly circular: lots of people – 
including lots of smart people – still oppose same-sex marriage, and smart 
people who oppose same-sex marriage will naturally come up with ways to treat 
their opposition to same-sex marriage as less problematic than other types of 
discrimination that have been more widely discredited. But that doesn’t change 
what otherwise appears to be purely invidious discrimination.


On Feb 27, 2014, at 8:40 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:

Greg Sisk's post re: how to think about the wedding photographer is just the 
compelled speech argument one more time.  In the case of a photographer, a 
First A claim of compelled speech is plausible, though not entirely persuasive. 
 In the case of a baker, florist, wine vendor, or caterer, the argument that 
their providing service to a same sex wedding involves compelling them to speak 
about the moral/religious bona fides of the ceremony is not even plausible.

But there is a deeper issue lurking in Greg's post.  If the photographer has a 
good compelled speech claim, it is entirely independent of religion.  She can 
have any reason, or no reason at all, to refuse to speak.  She can have 
religious objections, homophobic reactions, or aesthetic concerns about taking 
pictures of two brides or two grooms.  Her reasons are totally irrelevant.  
This is the precise lesson of Minersville v. Gobitis (no free exercise 
exemptions from compulsory Flag Salute at school) and West Va Bd of Ed v. 
Barnette (no one can be compelled to salute the American flag).  And if reasons 
are irrelevant, because this is a compelled speech problem, then it extends to 
all weddings -- inter-racial, inter-religious, Italian, Polish, Jewish, etc.  
The photographer cannot be "conscripted" by civil rights laws into taking and 
displaying photos against her will.  Maybe this is a good result; I have my 
doubts.  But it is NOT a religious exemption, and it does NOT require any 
parsing of phobic/bigoted/sincerely religious reasons to abstain. So, under 
Greg's approach, the problem raised by RFRA's, re: separating religious 
sincerity from phobic bigotry, remains entirely unresolved.


On Thu, Feb 27, 2014 at 7:43 PM, Sisk, Gregory C. 
mailto:gcs...@stthomas.edu>> wrote:
Although Steve’s post could be dismissed as filled with overstatements, unfair 
characterizations, demonization of dissenting voices, and setting up strawmen 
to easily knock down, let me take his points at face value and use them as a 
starting point for a conversation that might lower the tension and find some 
common ground.  Much of the back-and-forth accusations that fly past each other 
without true engagement may be traced to (1) the over-use or the mis-use of the 
term “discriminate” and (2) at least the appearance of overreaching in 
requesting accommodation.  The central point of dispute here really comes down 
to situations that involve a personal decision not to be forced to participate 
in a celebration or an affirmance of something with which one does not agree.  
Yes, other situations may arise and deserve consideration on their own merits.  
But let’s set those to one side for now.  If we were to narrow the battlefield 
down to the point of coerced personal participation and identification with a 
position or message and preserving freedom of association in a narrow category, 
perhaps we might find a place where the heat could be lowe

Re: It must not be a compelling interest since there are so many "exceptions"

[Gaubatz, Derek]

Marty, it seems to me that one weakness in your argument is that there's a big 
difference between a grandfather clause that would sunset old plans on a date 
certain and grandfather clauses that allow old plans to continue on to 
perpetuity.   Here, Congress chose the latter type, which means there is an 
exemption to the mandate that can continue on into perpetuity. (Although 
anecdotal, I'm aware of employers with no plans to lose their grandfather 
status).   And it's not like Congress didn't know how to impose some new 
requirements on grandfathered plans.   It did so for some provisions,  but it 
chose not to make these "preventive care" provisions (like the 
abortifacient/contraceptive mandate).   This undermines the claim that forcing 
employer plans (like Hobby Lobby) to provide the particular abortifacients to 
which they object serves an interest of the highest order:   Congress ignores 
this interest into perpetuity for some plans and when presented an opportunity 
to address that issue, chose not to.
Moreover, by your own figures, 36 percent of plans remain grandfathered at the 
end of 2013. But for the injunction, Hobby Lobby would be paying fines today 
while 36 percent of plans get to ignore this asserted interest of the highest 
order.
Your fallback argument in your blog post that Hobby Lobby should have kept its 
grandfathered plan and avoided this whole issue also falls short.   Even though 
you concede that HL ended its grandfathered plan before the abortifacient 
mandate was even imposed in regulations, you assert that surely HL knew that 
the mandate was a "serious possibility.".   This is nothing short of a blame 
the victim argument:   HL should have known that the Administration would 
ignore RFRA so it should have taken defensive measures to protect itself.I 
think HL could just have reasonably assumed that the government would have 
taken an approach to advancing its desired health policy objectives while also 
being respectful of the substantial number of its citizens who it knew would 
have religious objections.
Grace and peace to you,
Derek
From: Marty Lederman
Sent: Friday, February 21, 2014 6:22 PM
To: Law & Religion issues for Law Academics
Reply To: Marty Lederman
Subject: It must not be a compelling interest since there are so many 
"exceptions"


Derek writes:  "The briefs convincingly demonstrates that this doesn’t qualify 
as a compelling government interest because the regulatory regime established 
by the government already allows for large numbers of women not to get free 
abortifacients /contraceptives from their employers."

Convincing to whom?

The claim is spurious.  See 
http://balkin.blogspot.com/2014/01/hobby-lobby-part-iv-myth-of.html


On Fri, Feb 21, 2014 at 5:48 PM, Gaubatz, Derek 
mailto:dgaub...@imb.org>> wrote:
I don’t find the proposition to be particularly comforting that religious 
liberty concerns must take a back seat in areas “highly regulated” by the 
government as opposed to “lightly regulated” ones.Instead, it seems to me 
that the need to vigorously protect free exercise of religion is of greater 
importance in those areas of life where government intrusion is higher.   More 
fundamentally, the view that the free exercise of religion matters less when 
the government has already occupied the regulatory space raises the question of 
where does the right to free exercise of religion come from at all.Is the 
protection of religious exercise just a gift of a positivist state that sees 
some utilitarian benefit in providing some of its citizens a right to practice 
religion?   (E.g., wouldn’t it be quaint if our government allowed a few 
Mennonites—so long as they don’t take their faith too seriously).Or does 
the government protect the free exercise of religion because it recognizes that 
following one’s conscience in religious matters is something that is in the 
very nature of its people and is therefore a fundamental right that exists in 
all people prior to the state even existing?   Under the first view, what the 
state gives, the state can take away.   Under the second view, the power of the 
state is necessarily constrained by the existence of fundamental rights that 
inhere in the very nature of the people.   Yes, the government can limit 
exercise of religion in the second view, but only where it truly satisfies 
strict scrutiny; if the government exercises its power more broadly to limit 
free exercise of religion, it loses its legitimacy by denying its people the 
ability to live and act in accordance with something that makes them human in 
the first place—the ability to live and act in accordance with their 
religiously informed conscience.

On the substance, I would also disagree that Hobby Lobby and Conestoga have 
“ignored” the so-called Caldor / Establishment Clause problem of needing to 
avoid harm to 3rd parties.To the contrary, the bri

RE: RLPA history for RLUIPA

[Gaubatz, Derek]

We've been down this road before:forcing plaintiffs to choose between 
abandoning their religious beliefs, paying crippling penalties, or becoming a 
second-class employer that doesn't offer its employees benefits is a government 
imposed substantial burden.It's only those employers with religious 
objections to the abortifacient mandate who face these particular set choices 
and that set of choices only arises because of the mandate.   Employers without 
religious objections to the abortifacient mandate aren't put to these choices; 
if they choose to become the second-rate employer who doesn't offer benefits, 
it's not because they were forced into that choice at the price of abandoning 
their religious beliefs.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, February 21, 2014 5:26 PM
To: Law & Religion issues for Law Academics
Subject: Re: RLPA history for RLUIPA

Which tax?  Hobby Lobby, like any employer, can choose not to offer an employee 
health care plan if it does not wish to comply with any of the many 
requirements that apply to all such plans -- or for any other reason, for that 
matter.  If it does so, it will pay a tax assessment to help subsidize the 
government subsidy on the exchanges . . . but that tax will pale in comparison 
to the savings it will realize by not having to pay insurance premiums and the 
costs of plan administration.

In any event, the question is not whether Hobby Lobby is "burdened" at all, but 
whether federal law imposes a substantial burden -- in this case, whether the 
law substantially pressures HL to retain its plan notwithstanding the religious 
objection.  HL has not pleaded facts to demonstrate that it would be subject to 
such significant pressure -- it has offered only conclusory statements.

On Fri, Feb 21, 2014 at 4:54 PM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:
Yes, but the tax in and of itself is a burden on Hobby Lobby.

On Fri, Feb 21, 2014 at 2:35 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:

Actually, FWIW, Hobby Lobby is not required to provide contraception, or even 
to provide reimbursement for its purchase.  See 
http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html

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RE: recommended Hobby Lobby posts

[Gaubatz, Derek]

I don't find the proposition to be particularly comforting that religious 
liberty concerns must take a back seat in areas "highly regulated" by the 
government as opposed to "lightly regulated" ones.Instead, it seems to me 
that the need to vigorously protect free exercise of religion is of greater 
importance in those areas of life where government intrusion is higher.   More 
fundamentally, the view that the free exercise of religion matters less when 
the government has already occupied the regulatory space raises the question of 
where does the right to free exercise of religion come from at all.Is the 
protection of religious exercise just a gift of a positivist state that sees 
some utilitarian benefit in providing some of its citizens a right to practice 
religion?   (E.g., wouldn't it be quaint if our government allowed a few 
Mennonites-so long as they don't take their faith too seriously).Or does 
the government protect the free exercise of religion because it recognizes that 
following one's conscience in religious matters is something that is in the 
very nature of its people and is therefore a fundamental right that exists in 
all people prior to the state even existing?   Under the first view, what the 
state gives, the state can take away.   Under the second view, the power of the 
state is necessarily constrained by the existence of fundamental rights that 
inhere in the very nature of the people.   Yes, the government can limit 
exercise of religion in the second view, but only where it truly satisfies 
strict scrutiny; if the government exercises its power more broadly to limit 
free exercise of religion, it loses its legitimacy by denying its people the 
ability to live and act in accordance with something that makes them human in 
the first place-the ability to live and act in accordance with their 
religiously informed conscience.

On the substance, I would also disagree that Hobby Lobby and Conestoga have 
"ignored" the so-called Caldor / Establishment Clause problem of needing to 
avoid harm to 3rd parties.To the contrary, the briefs deal extensively with 
whether the alleged harm to 3rd parties-i.e., increasing the number of women 
who won't get free abortifacients /contraceptives--qualifies as a compelling 
government interest.   The briefs convincingly demonstrates that this doesn't 
qualify as a compelling government interest because the regulatory regime 
established by the government already allows for large numbers of women not to 
get free abortifacients /contraceptives from their employers (i.e., women in 
grandfathered plans, plans with employers who employ less than 50 employees, 
and plans with those employers the Administration (grudgingly) conceded were 
sufficiently religious).   Where so many exceptions to this interest already 
exist, this doesn't rise to the level of a compelling government interest.  
Moreover, the fact that other exceptions are given for non-religious reasons 
means that this is not a case in which an exception has been given for uniquely 
religious reasons, thereby further avoiding an Establishment Clause concern.

Grace and peace to you,
Derek L. Gaubatz
IMB General Counsel

Our vision is a multitude from every language, people, tribe and nation knowing 
and worshipping our Lord Jesus Christ.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, February 20, 2014 8:27 PM
To: Law & Religion issues for Law Academics
Subject: Re: recommended Hobby Lobby posts

Mark Scarberry writes "We are on a slippery slope when we refer to someone as 
seeking to have "the government[] ... authorize [it] to act on religious 
beliefs in ways that harm others," when what is at stake is whether the 
government can force that person to do something for others in violation of 
religious conscience. This comes very close to saying that the government 
authorizes whatever it does not prohibit."

Mark's concern is very apt in a world of lightly regulated relationships 
between people who are not in a legally constructed relationship.  The 
government does not "authorize" me to be rude to my neighbors when it fails to 
prohibit the rudeness.  But the employment relation is a highly regulated 
contractual one, with all sorts of legal duties imposed on parties, especially 
on employers.  So if government prescribes terms for that relationship -- e.g., 
provide a safe workplace -- then an exemption from those terms is 
"authorization" to behave differently and alter the contract to the detriment 
of the other party.
The minimum coverages -- contraceptive and otherwise -- are now effectively 
part of the employment contract in firms with 50+ employees, and the only ways 
out are 1) keep your pre-ACA plan, or 2) pay the assessable payment for 
dropping or not obtaining coverage. (If you do the latter, your employees can 
buy coverage on the exchanges, and they will get all the coverages.)  

Re: Notre Dame-- where's the complicit "participation"? Sincerity

[Gaubatz, Derek]

Respectfully, I think you missed the point of Professor Sisk's argument (and 
mine in the preceding post).   The argument is not that religious views are the 
only ones that matter and that they must triumph over women's health concerns.  
 Instead, the argument was that with just a modicum of effort, a system could 
very easily have been devised that would have accommodated both health policy 
concerns and religious liberty interests.   (Yes, there might be some 
government financial cost to such a solution, just as there are to some other 
accomodationist solutions like providing kosher diets for prisoners or armed 
forces personnel, but that cost has a good return of maintaining harmony among 
a plural society and respecting the dignity of the individual believer).   I've 
yet to hear a good argument as to why that wouldn't be a better outcome.   When 
the government knows that a large number of citizens have strong religious 
objections to a particular policy, why isn't it better for the government to 
recognize the religious nature of this portion of its citizenry and achieve its 
desired policy ends in a way that doesn't subject these citizens to crippling 
fines for seeking to live their lives in accord with their faith?

Grace and peace to you,
Derek
From: Greg Lipper
Sent: Monday, February 17, 2014 6:35 PM
To: Law & Religion issues for Law Academics
Reply To: Greg Lipper
Subject: Re: Notre Dame-- where's the complicit "participation"? Sincerity


Professor Sisk’s post epitomizes many of the inaccurate assumptions that led to 
the enactment of the women’s health provisions in the first place. Let me try 
to address a few of the most important points:

1. The distinction between “medically-indicated” (non-contraceptive) uses of 
contraception and “non-medical” uses of contraception is spurious. Put aside 
for a moment the importance of allowing women to control their own bodies, stay 
in school, rise in the workplace, etc. Contraception qua contraception is still 
critical for women’s health (planned pregnancies lead to better prenatal care, 
and some women have health conditions that make pregnancy dangerous) and for 
the health of the children (planned pregnancies lead to better prenatal care, 
and properly spaced pregnancies are better for the children).

2. Even if the medical/non-medical distinction were real, imagine having to go 
to your HR department for permission to receive coverage for 
“medically-indicated” uses of contraception. It’s a trifle infantalizing.

3. There is also no such thing as “ordinary contraception” (which Professor 
Sisk posits can be purchased for $10 a month, leaving medical coverage 
unnecessary). I’m assuming that Professor Sisk uses that term to refer to the 
birth-control pill. Other forms of contraception (such as IUD) are far more 
effective and also much more expensive; their high upfront cost leads many 
women to choose cheaper and less effective methods. Even if IUD were somehow 
considered an aspirational luxury, oral contraception isn’t appropriate for 
some women, for instance due to side effects. So we can’t just send women to 
CVS sans insurance.

4. Even if oral contraception were the only game in town, $120 a year is 
nothing to sneeze at, especially for low-wage workers – the very people who 
already face significant financial barriers to obtaining contraception.

5. Many of the same people who have opposed the contraception-coverage 
regulations most strenuously would be among the loudest voices opposing a 
government program to fund/subsidize contraception for women whose employers 
refused to include it in their health policies. The ACA, which attempted to 
keep employer-based coverage largely in place, has already been derided as 
“socialized medicine.” Even if a separate program were politically viable, 
forcing women with objecting-employers to sign up for a separate, 
government-run program of contraception coverage is a needless extra burden, is 
stigmatizing, and makes insurance coverage less seamless for those women.

6. Let’s put aside for a moment that the “abortifacient” label is almost 
entirely contradicted by modern science (even if you accept that interference 
with implantation constitutes an abortion). Since opponents of the 
contraception regs regularly describe the regs as the “abortion pill mandate,” 
are those opponents – the very organizations representing most of the 
plaintiffs in these cases – going to turn around and support a government 
program that uses taxpayer dollars to provide women with “abortion pills”? 
Don’t bet on it.

Implicit in Professor Sisk’s post is that contraception is junior-varsity 
healthcare, and that it’s okay if there are gaps in contraception coverage or 
if women are left to fend for themselves to get contraception. That is a 
dubious policy position, and it was wisely rejected by the political branches. 
However one comes down on the religious objections that are now being asserted 
in court, P

Re: Notre Dame-- where's the complicit "participation"? Sincerity

[Gaubatz, Derek]

Re Marci's assertion that the slippery slope is "perpendicular" if for profit 
corporations are recognized to be protected under RFRA, it seems to me that we 
don't have to just rely on the rhetorical speculation of Marci and the Obama 
administration in its brief. Instead, we have, as Marty has helpfully 
highlighted, a historical record to measure this slippery slope claim against. 
RFRA has been the law for 20 years, which means that for 20 years, for profit 
corporations have had available to them the opportunity to make the argument 
that RFRA provides them protection.   I'm simply not aware of a flood of claims 
out there in which corporations have challenged laws under RFRA.

The absence of such claims is in accord with my personal experience.  For 
several years, I've served as General Counsel for a non profit corporation with 
strong religious views (ones probably pretty closely aligned with the views of 
those who own Hobby Lobby and Conestoga). I seek to keep us compliant with 
hundreds if not thousands of statutes and regulations.   There are plenty of 
laws and regulations that I and my leadership dislike because they are costly 
to abide with or pose an inconvenience, but we still abide by them.   We don't 
sit around in a RFRA cabal trying to dream up challenges to these laws. (That 
said, Marci, your imagination on these issues may be better than mine so if you 
have any good ideas for RFRA challenges, send them along and I'll talk to my 
client about giving you a share of the attorney fees when we prevail).   
Instead, we comply with the laws because almost without exception, most laws 
don't conflict with our religious convictions or otherwise impose a substantial 
burden on our religious exercise.The abortifacient/contraceptive mandate is 
a very unique and exceptional law in my experience in that it does force those 
with religious objections to abortifacients and contraceptives into a role of 
complicity with a morally objectionable practice and is crafted in such a way 
that it will impact a large number of people and institutions with such views.

Given the uniqueness of the mandate and the absence of a flood of claims in 
general by for profit corporations since RFRA was enacted, I don't see an 
empirical basis for the slippery slope argument here.

The real problem here, in my view, is not the fantasy slippery slope imagined 
by Marci, but the fact that the Obama Administration deliberately chose to pick 
a fight on an issue in which it knew that a large number of Americans hold 
strong religious and moral views. It could have taken notice of and 
accommodated these strong views of many of its citizens, and crafted its 
regulations in a way that provided additional exemptions and found other ways 
to deliver abortifacients and contraceptives to those it believes needs them.   
That would have been the reasonable thing to do and it could have easily 
avoided this whole controversy at minimal or no cost to the Adminstration's 
professed objective of altering the status quo to make abortifacients and 
contraceptives even more readily accessible and less costly than they already 
are.  But the Administration chose instead to stick a finger in the eye of 
those who disagreed with them on the morality of abortifacients and 
contraceptives, professed to be "shocked" when these folks asserted religious 
objections, and then cynically exploited the issue for political gain in the 
election by claiming there was "a war on women."Hobby Lobby and Conestoga 
weren't engaged in a war on women; they were peacefully minding their own 
business when the gauntlet was laid down to them: violate your beliefs or pay 
fines that will put you out of business.

Grace and peace to you,
Derek

From: Marci Hamilton


There is a doubt however about what American Catholics believe.  They 
overwhelmingly reject the church teaching against contraception.   They don't 
think they are sinners as Mark suggested.  They reject it.

Every poll supports that as does the fact that it is rare to find a Catholic 
family w 10-20 children in the US.  The teaching is one thing: the belief is 
another in the US.   This is not an idle observation.  ND has inserted itself 
into the spotlight by asserting beliefs that most Americans know Catholics 
reject-in theory and in practice.

On Marty's point--the fact that the government gives for-profits a pass
on abortion does not show they have a conscience.  It shows religious abortion 
opponents had political clout.Your reasoning strikes me as backward.   I 
think Marty and the SG are on the stronger ground here   If the Court finds 
they have
such rights, the slippery slope is perpendicular to the ground.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton

On Feb 16, 2014, at 3:45 PM, "Douglas Laycock" 
mailto:dlayc...@virginia.edu>> wrote:

No doubt the Board and senior administration speaks for Notre Dame. 

Re: The government's brief

[Gaubatz, Derek]

Maybe I'm missing your point, but it seems to me that forcing religious 
employers to such a coercive choice hardly relieves the burden.   Why should an 
employer be forced, because of its religious convictions to refuse to offer its 
employees health coverage?   The fact that there is a legal option to pay a tax 
seems to be a nonsequiter.   Many employees and employers will see an employer 
that doesn't offer them health coverage to be much less attractive than one 
that does, particularly when it means forcing the employees into a health 
exchange system that, shall we say, has its own problems.  Employers without 
religious objections to the abortifacient mandate aren't put to this choice of 
offering  what many employees will see as a less valuable employment package. 
To force it only on those with such objections still leaves them burdened.
Grace and peace to you,
Derek
From: Marty Lederman
Sent: Saturday, January 11, 2014 12:20 PM
To: Law & Religion issues for Law Academics
Reply To: Marty Lederman
Subject: Re: The government's brief


Indeed, just one week ago, in its Little Sisters brief, the government told the 
Court this:

The preventive-services coverage provision in general, and the 
contraceptive-coverage provision in particular, apply only if an employer 
offers a group health plan.  Employers, however, are not required to offer 
group health plans in the first place.  Large employers (those with more than 
50 full-time-equivalent employees) face a potential tax if they do not provide 
coverage, 26 U.S.C. 4980H (Supp. V 2011), but that gives them a “choice” 
between two legal options: provide a group health plan or risk payment of the 
tax. Liberty Univ., 733 F.3d at 98; cf. National Fed’n of Indep. Bus. v. 
Sebelius, 132 S. Ct. 2566, 2596-2597 (2012).


On Sat, Jan 11, 2014 at 12:13 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
I don't read it to say anything of the sort:  Footnote 2 is about what can 
happen if an employer that sponsors a plan fails to include required coverage.


On Sat, Jan 11, 2014 at 12:08 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
Footnote 2 of the government’s brief appears to disclaim, and rebut, the view 
that large employers are free to drop health insurance and pay the taxes.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546


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Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument

[Gaubatz, Derek]

Marty, I'd likewise quibble with your characterization of the grandfather 
provision. A plan can maintain its grandfather provision for the foreseeable 
future so long as it abides by the conditions for doing so. This was at least 
part of the basis for the President's infamous "if you like your plan and 
doctor you can keep it" claim.   Of course, in practice the government is 
trying to right the rules so narrowly that it makes it difficult to do so or 
reduces the incentive to do so. Nonetheless, many plans will for a period of 
years maintain that status, thereby creating an underinclusiveness problem.


From: Marty Lederman
Sent: Saturday, January 11, 2014 7:56 AM
To: Law & Religion issues for Law Academics
Reply To: Marty Lederman
Subject: Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption 
Argument


Just a quick point to quibble with the factual premises of the "selectivity" 
argument.  Plans offered by small business do have to include the relevant 
preventive services, including -- but hardly limited to -- contraception 
services.  (The services also include cholesterol screening; colorectal cancer 
screening; diabetes screening for those with high blood pressure; certain 
immunizations; “evidence-informed preventive care and screenings” for infants, 
children, and adolescents; specified annual well-woman visits; gestational 
diabetes screening; HPV DNA testing; testing for sexually transmitted diseases 
and HIV screening and counseling; breastfeeding support, supplies and 
counseling; and domestic violence screening and counseling.)

Likewise, the so-called grandfathering "exception" is merely an ordinary 
"phasing in," or timing, provision, which allows a transition period for 
compliance with several of the Act's requirements until the plans otherwise 
make one of several specified changes.  The employees of such plans will 
eventually receive the preventive care coverages (not only contraception -- all 
those listed above).

The only real "carve-out" -- the only one that would result in employees not 
receiving contraceptive coverage -- is HHS's own exemption for churches and 
their auxiliaries.  And if that religious accommodation is what triggers 
Lukumi, well . . .


On Fri, Jan 10, 2014 at 9:37 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:
The opening brief for Conestoga Wood Specialties Corp. has been filed, and I 
believe this may be the first time the Supreme Court has been presented with an 
argument in a party's merits brief as to the scope of the so-called 
"Sherbert-exception to Smith" -- the idea expressed in both Smith and Lukumi 
that although the Free Exercise Clause does not require religious exemptions to 
be made from uniform legal obligations, religious exemptions may be required 
when other exemptions to a law are available.

In an article last year, I suggested that there remain at least five major 
unresolved questions about the selective-exemption rule:

1.  What is the purpose of the rule: is it designed to guard against the danger 
of intentional discrimination or to address the adverse impact on religious 
minorities of unintentional neglect or indifference?

2.  Does the rule only apply when a law allows for ad hoc, individualized 
exemptions to an obligation (e.g., discretionary excuses under a "good cause" 
or "necessary" standard), or does it also apply when the government makes 
select categorical exemptions to a law?

3.  If the rule applies when categorical exemptions are made, how should courts 
determine whether an existing categorical exemption to a law is sufficiently 
analogous to the requested religious exemption to be deemed a relevant 
comparator?

4.  How many comparable categorical exemptions must exist before the 
selective-exemption rule is triggered by the denial of a religious exemption?

5. What is the appropriate level of judicial scrutiny to be applied once the 
selective-exemption rule is triggered?

Conestoga's positions on questions #2 and #5 are what you would expect. On #2, 
it argues that the selective-exemption rule extends to situations involving 
categorical exemptions (in this case, the ACA's exemptions for small businesses 
and grandfathered plans). On #5, it argues for strict scrutiny (which is what 
the Court indicated in both Smith and Lukumi applies to 
individualized-exemption situations).

Conestoga's brief does not contain much argument relevant to questions #3 and 
#4.

As for #1, I found the most relevant passage in Conestoga's brief to be quite 
surprising. Usually, advocates of a broad reading of the selective-exemption 
rule make a point of contending that the rule is not limited to situations 
involving the danger of discriminatory intent. Yet, Conestoga's brief quotes a 
portion of the Third Circuit's decision in Fraternal Order of Police Newark 
Lodge v. Newark that speaks directly to discriminatory intent and is not 
usually quoted by advocates of a broad reading of the rule:

"Providing secular

RE: The nonprofit contraception services cases

[Gaubatz, Derek]

It seems to me that there is a much less nefarious explanation.  In the context 
of those Establishment Clause challenges, it was permissible for a religious 
entity like Notre Dame to receive the government funds so long as they were not 
used for items deemed to be inherently religious activities such as worship or 
instruction.   In saying that the provision of health insurance was a secular 
expense, Notre Dame was merely distinguishing such expenses from those that 
might be spent on things like theological instruction or wine for a mass.   But 
to say that the provision of health insurance is a secular expense, unlike 
worship or instruction, says nothing about whether Notre Dame can and does 
apply its religious beliefs to what type of health insurance it provides.
Moreover, it would also be an “administrative” or “secular” expense (as opposed 
to inherently religious) for Notre Dame to pay for the salary of someone 
running one of its government grant programs, but that doesn’t mean Notre Dame 
can’t apply its religious beliefs and criteria to selecting those that it 
hires.So I think it is fair to say that there can be secular expenses (as 
opposed to inherently religious) under Establishment Clause jurisprudence that 
still involve the exercise of religious beliefs by a religious entity.


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton


This reminds me of the religious organizations
who tell their employees in writing that they do not discriminate but when they 
get sued for discrimination
argue the ministerial exception.

   Religious employers appear to be no different from any other in seeking the 
most beneficial position at the
expense of employees or others.   The question
is whether courts will hold them to their
previous statements and positions.

Marci A. Hamilton

On Jan 6, 2014, at 4:21 PM, Greg Lipper mailto:lip...@au.org>> 
wrote:
One further note, related to Marci’s question, and detailed in our intervention 
papers: Notre Dame has emphasized the secular nature of its benefits when in 
its legal interests to do so.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
Clause challenge to public funding of a teacher-training program at Notre Dame, 
the university argued that the benefits that it provides, including health 
insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, 
Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.

And in American Jewish Congress v. Corporation for National & Community 
Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
Establishment Clause challenge to Notre Dame’s receipt of public funds, the 
University argued that purchasing health insurance is “administrative” in 
nature and does not constitute “religious instruction or activity.” Mem. of 
Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part 
A, § 3, para 10.

So whatever else Notre Dame may or may not do to create a religious educational 
environment, presumably it can’t have it both ways – health insurance is either 
a secular expense or involves religious exercise, but it can’t be both at the 
same time.


On Jan 6, 2014, at 3:44 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:

Doesn't it depend in some way on how much
federal money it receives?   Again, I am
simply asking.

Marci A. Hamilton
Verkuil Chair in Public Law


On Jan 6, 2014, at 3:15 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
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Re: A right not to be compelled to create expression?

[Gaubatz, Derek]

Actually, the creator is the copyright owner of the work unless the purchaser 
successfully negotiates for a work for hire agreement.


From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Saturday, August 24, 2013 01:26 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: A right not to be compelled to create expression?

Point of law--  Most freelancers are subject to work for hire agreements that 
divest copyright and make the purchaser the "owner" of the speech for all 
purposes.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 24, 2013, at 12:37 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

Well, New Mexico law covers “any establishment that provides or 
offers its services ... to the public, but does not include a[n] ... 
establishment that is by its nature and use distinctly private.”  That does 
mean that a freelance writer who only writes on behalf of a limited set of 
clients, rather than offering his services to the public at large, wouldn’t be 
covered by this particular statute.  But a freelance writer who does promote 
his services to the public would qualify, even if he exercises some 
selectivity.  (Indeed, Huguenin says that there are other photography 
commissions she won’t take, such as for pornography, horror films, and the 
like, though chances are that she won’t even be approached for them in the 
first place.  Conversely, my sense is that many freelance writers who offer to 
hire themselves out to the public will take the great majority of jobs that 
come their way, even though they too would draw the line somewhere.)  So I 
can’t see how such freelance writers would be immune.

But in any event, even if a freelance writer or photographer is 
unselective, I can’t see how that person’s expression isn’t “her own.”  To be 
sure, the public might not see an unselective photographer’s/writer’s speech as 
equally expressing her own ideology.  But the writer or photographer would 
still be creating the expression herself, using her own artistic and literary 
creative judgment.

The question, then, is:  Should people have a right not to be 
compelled to create expression they think is wrong, just as they have a right 
not to be compelled to distribute expression they think is wrong?  It seems to 
me that the logic of Wooley should extend equally to both rights.  If Maynard 
can’t be required to carry the motto “Live Free or Die” on his car, then a 
Maynard who is a generally will-take-most-commissions freelance writer can’t be 
required to write a press release or organizational newsletter that expresses 
the view “Scientology is good.”  Indeed, the requirement to actually create 
expression seems much more burdensome than simply the requirement to carry a 
slogan on one’s car.

Finally, note that the New Mexico Supreme Court expressly 
disclaimed any argument that mere wedding photography is just too banal to be 
expressive for purposes of this analysis (not that Eduardo so argued below, but 
I’ve seen that argument elsewhere).  “This determination [that Elane 
Photography is subject to the public accommodations law] has no relation to the 
artistic merit of photographs produced by Elane Photography.  If Annie 
Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico, 
they would be subject to the provisions of the NMHRA.”

Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Eduardo
Sent: Friday, August 23, 2013 12:23 AM
To: Law & Religion issues for Law Academics
Subject: Re: New Mexico decision and other First Amendment expression

It seems to me, the more selective they are, (1) the less likely they are 
covered by the statute (the predicate for the 1A claim) and (2) the more the 
speech is their own (which does seem relevant to a compelled speech claim).

On Aug 22, 2013, at 11:23 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
My sense is that many freelance writers are indeed pretty 
unselective.  But, in any event, why should the writer’s or photographer’s 
selectivity or unselectivity affect the First Amendment compelled speech 
analysis?  I would think that a freelance writer who picks and chooses – but 
absolutely refuses to write things for the Church of Scientology – and the 
freelance writer who takes 99% of his commissions but thinks that the Church of 
Scientology is just beyond the pale should have the same First Amendment rights 
not to create expression that they think is wrong (or maybe that they think is 
just too far wrong).

Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Penalver, Ed

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Gaubatz, Derek]

"To avoid a conflict over religion, government should simply take no cognizance 
of religion, and if it will do that, then 'no man's right' to religious freedom 
will be abridged by civil society."

I'm not sure whether this is a view that Professor Ellis is somehow imputing to 
Madison (wrongly in my view) or if it's his own view, but respectfully I'd be 
hard-pressed to find a view more demonstrably false.   Laws that take no 
cognizance of religion inevitably lead to conflict.   (We wouldn't be having 
this debate about the ACA and this listserv wouldn't exist if it were 
otherwise).   The reason is simple:   the vast majority of the citizens in this 
country (and even more so of the world) hold strong religious views.   These 
religious views are at the core of who these people are.   When a government 
takes no cognizance of the religious practices and beliefs of its citizens in 
adopting its laws, it ignores something fundamental about the nature of its 
citizens and inevitably sets the stage for conflict and the potential 
disruption to civil society. To believers who can't follow their 
consciences informed by their religious views, it matters not whether the law 
that stymies them was motivated by sectarian or secular motives, either way 
they face the burden of a government burden on their conscience.   The fact 
that Madison was writing in a context in which the more immediate problem was 
laws motivated by sectarian prejudices in no way supports the idea that he 
would have been a cheerleader for secular laws that burdened the faithful.

Derek L. Gaubatz
IMB General Counsel

Our vision is a multitude from every language, people, tribe and nation knowing 
and worshipping our Lord Jesus Christ.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Monday, August 19, 2013 4:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

Richard, The quoted passage below is so dense and complicated that I will not 
attempt to do justice to it here.  I would say just a few things.  First, the 
M&R was written in opposition to a law that would have, in effect, established 
Christianity in Virginia.  This passage needs to be interpreted with that in 
mind.  Second, there is no question but what Madison is saying that humans 
should obey God above all else, and presumably he would say they have a moral 
right to do that even when what they think God commands conflicts with what 
government commands, i.e., they have a right to engage in civil disobedience.  
Does that, however, mean that he thought that government should not punish them 
for their disobedience?  After all, although Madison does not explicitly say it 
here, I'm confident that he believes that good government is ordained by God in 
order to protect our God-given rights to life, liberty, and property.  In other 
words, rulers, as well as private individuals, have a duty to render to God 
certain kinds of behavior.  This means that what the rulers think God requires 
of them will sometimes conflict with what individuals think God requires of 
them.  Does Madison think that when that conflict occurs, the individual or the 
minority will should trump the rulers' or majority's will?  Third, YES, he 
does, BUT ONLY when the government or majority intentionally and explicitly 
takes a position on religious issues.  To avoid a conflict over religion, 
government should simply take no cognizance of religion, and if it will do 
that, then "no man's right" to religious freedom will be abridged by civil 
society.  Fourth, if Madison were arguing here for a right to religion-based 
exemptions from valid, secular laws on the grounds that they, too, abridge a 
man's right to religious freedom, then the only way that a man's right to 
religious freedom could never be abridged by government would be for the 
government to grant ALL religion-based exemptions.  Of course, no one, so far 
as I know, has ever taken such a position, and it is beyond belief that Madison 
was intending to take such a position.  In short, it is difficult, if not 
impossible, to reconcile the idea that Madison was arguing for religion-based 
exemptions with his statement that "Religion is [or should be] wholly exempt 
from its [civil society's] cognizance."

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard Dougherty
Sent: Monday, August 19, 2013 2:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)


I agree with much of what is said here, but don't think it fully captures

RE: RFRA and claimants' theories of complicity

[Gaubatz, Derek]

I'd also add that the law already does impose liability in the health care 
reimbursement context for the type of complicity Eugene notes below.   Among 
its various regulations, the Office of Foreign Asset Control (OFAC) prohibits 
US persons from engaging in any transactions with any entity on OFAC's 
Specially Designated Nationals (SDN) list.   As an employer with a self-insured 
health care plan with lots of employees overseas, we must make sure that we 
don't reimburse the employee for the costs of care from any provider on the SDN 
list.The fact that the employee chose this provider doesn't insulate us 
from liability if we actually pay for the care (whether by paying the provider 
directly or reimbursing the employee's out of pocket costs).


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, October 04, 2012 1:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: RFRA and claimants' theories of complicity

Of course when criminal law or tort law makes someone liability 
for complicity, it must set forth an objective definition of what counts as 
complicity.  My point (and Doug's) is that, when someone claims a religious 
duty to avoid complicity with conduct he views as sinful (under RFRA), it 
doesn't make much sense to say "Oh, that's not a credible theory of complicity" 
when it's a theory very similar to what the legal system itself sometimes uses 
in deciding complicity with conduct that it views as wrong.

I think the proper approach is a standard that focuses on what 
the claimant sincerely believes.  That is certainly what we use in 
non-complicity cases.  When the law defines what's a crime, it must use 
objective standards; but when a claimant says "I want an exemption from a 
requirement that my store be open on Saturday," or "I want an exemption from a 
requirement that I show up to work clean-shaven," religious exemption law 
doesn't use any "objective" standard to determine which laws impose a 
subjective burden - the question is whether this person subjectively believes 
that he must not work on Saturdays, or must not shave himself.  The same, I 
think, should be used in complicity cases; the substantial burden should be 
whether the defendant subjectively believes that certain actions would 
constitute religiously forbidden complicity.  (Of course, the religious 
exemption claim could still be denied, either if a court finds that imposing 
the burden passes strict scrutiny, or if the legislature exempts the relevant 
statute from the RFRA.)

But if we are to impose some sort of second-guessing, by 
rejecting claims that are somehow too "bizarre" (to quote an ambiguous phrase 
from Thomas), then it seems to me hard to say "Your religious view of 
complicity with religiously forbidden conduct are bizarre" when they are very 
similar to the views that the legal system itself adopts as to complicity with 
legally forbidden conduct.

Alternatively, if we are to impose not just a "bizareness" 
review, but an objective rule that treats objections based on sin-by-complicity 
concerns differently from objections based on sin-by-other-things concerns, 
then the question is what the "objective rule" should be.  Why shouldn't this 
objective rule reflect the commonplace tort law rule, and occasional criminal 
law rule, that says that knowledge that one is very likely providing assistance 
to conduct constitutes "complicity" with that conduct, to the point that the 
criminal law or tort law treats it as leading to liability, and RFRA law treats 
it as justifying a claim of substantial burden?

Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, October 04, 2012 10:24 AM
To: Law & Religion issues for Law Academics
Subject: Re: RFRA and claimants' theories of complicity

In these cases about landlord or employer liability or criminal complicity, the 
landlord or employer is denying complicity, and the law imposes objective 
standards to adjudicate the question.  It would never be the case that the law 
would allow the landlord or employer to escape liability by saying "I didn't 
feel responsible for the conduct."  So don't we need similarly objective 
standards to test a RFRA claimant's assertion of proximity or responsibility?  
And won't any such standards involve courts second-guessing the religious 
beliefs of others?  The RFRA context requires either "I sincerely say so"  
(which many on the list have argued for, but that has nothing to do with the 
objective complicity rules), or judicial evaluation (under objective, legal 
standards, not Thomas-like, subjective religious ones) of proximity to 
something the religious claimant views as evil that others view 

RE: RFRA and claimants' theories of complicity

[Gaubatz, Derek]

I'd also add that the law already does impose liability in the health care 
reimbursement context for the type of complicity Eugene notes below.   Among 
its various regulations, the Office of Foreign Asset Control (OFAC) prohibits 
US persons from engaging in any transactions with any entity on OFAC's 
Specially Designated Nationals (SDN) list.   As an employer with a self-insured 
health care plan with lots of employees overseas, we must make sure that we 
don't reimburse the employee for the costs of care from any provider on the SDN 
list.The fact that the employee chose this provider doesn't insulate us 
from liability if we actually pay for the care (whether by paying the provider 
directly or reimbursing the employee's out of pocket costs).

Derek L. Gaubatz
IMB General Counsel

Our vision is a multitude from every language, people, tribe and nation knowing 
and worshipping our Lord Jesus Christ.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, October 04, 2012 1:44 PM
To: Law & Religion issues for Law Academics
Subject: RE: RFRA and claimants' theories of complicity

Of course when criminal law or tort law makes someone liability 
for complicity, it must set forth an objective definition of what counts as 
complicity.  My point (and Doug's) is that, when someone claims a religious 
duty to avoid complicity with conduct he views as sinful (under RFRA), it 
doesn't make much sense to say "Oh, that's not a credible theory of complicity" 
when it's a theory very similar to what the legal system itself sometimes uses 
in deciding complicity with conduct that it views as wrong.

I think the proper approach is a standard that focuses on what 
the claimant sincerely believes.  That is certainly what we use in 
non-complicity cases.  When the law defines what's a crime, it must use 
objective standards; but when a claimant says "I want an exemption from a 
requirement that my store be open on Saturday," or "I want an exemption from a 
requirement that I show up to work clean-shaven," religious exemption law 
doesn't use any "objective" standard to determine which laws impose a 
subjective burden - the question is whether this person subjectively believes 
that he must not work on Saturdays, or must not shave himself.  The same, I 
think, should be used in complicity cases; the substantial burden should be 
whether the defendant subjectively believes that certain actions would 
constitute religiously forbidden complicity.  (Of course, the religious 
exemption claim could still be denied, either if a court finds that imposing 
the burden passes strict scrutiny, or if the legislature exempts the relevant 
statute from the RFRA.)

But if we are to impose some sort of second-guessing, by 
rejecting claims that are somehow too "bizarre" (to quote an ambiguous phrase 
from Thomas), then it seems to me hard to say "Your religious view of 
complicity with religiously forbidden conduct are bizarre" when they are very 
similar to the views that the legal system itself adopts as to complicity with 
legally forbidden conduct.

Alternatively, if we are to impose not just a "bizareness" 
review, but an objective rule that treats objections based on sin-by-complicity 
concerns differently from objections based on sin-by-other-things concerns, 
then the question is what the "objective rule" should be.  Why shouldn't this 
objective rule reflect the commonplace tort law rule, and occasional criminal 
law rule, that says that knowledge that one is very likely providing assistance 
to conduct constitutes "complicity" with that conduct, to the point that the 
criminal law or tort law treats it as leading to liability, and RFRA law treats 
it as justifying a claim of substantial burden?

Eugene

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Thursday, October 04, 2012 10:24 AM
To: Law & Religion issues for Law Academics
Subject: Re: RFRA and claimants' theories of complicity

In these cases about landlord or employer liability or criminal complicity, the 
landlord or employer is denying complicity, and the law imposes objective 
standards to adjudicate the question.  It would never be the case that the law 
would allow the landlord or employer to escape liability by saying "I didn't 
feel responsible for the conduct."  So don't we need similarly objective 
standards to test a RFRA claimant's assertion of proximity or responsibility?  
And won't any such standards involve courts second-guessing the religious 
beliefs of others?  The RFRA context requires either "I sincerely say so"  
(which many on the list have argued for, but that has nothing to do with the 
objective complicity rules), or judicial evaluation (under objective, legal 
standards, not Thomas-

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Marci,

The substantial burden theory here is not new, it's merely another factual 
iteration of what the Supreme Court has previously recognized in cases like 
Yoder to be a substantial burden:   levying a financial penalty against an 
individual who refuses to violate his sincere religious beliefs (whatever those 
beliefs might be) is a per se substantial burden.As I noted earlier, the 
proper focus of whether there is a government imposed substantial burden  is an 
objective test that focuses on the action taken by the government, not the 
subjective feelings of the believer.   An objective substantial burden is an 
action by the government that coerces or tend to inhibit any religious 
exercise.   For example, Yoder makes clear that being fined for engaging in a 
particular act of religious exercise is objectively a substantial burden 
regardless of the particular nature of the religious exercise involved (e.g., 
wearing a yarmulke, sending kids to the public school, or being forced to 
purchase a product or service contrary to your beliefs).Objectively 
focusing on the nature of the action taken by the government avoids getting 
into a quagmire of analyzing the subjective nature about how the claimant feels 
about the government action.

I'm not smart enough to debate whether the religious claimants are channeling 
Nietzsche, but I suspect most of them are good people who simply wish the 
government would return things to the state of affairs that existed before it 
imposed the mandate.   That is, recognizing a religious accommodation to the 
mandate under RFRA merely returns things to the empirical world that existed 
pre- mandate: the non-believing employee still has the power to spend her money 
to purchase contraceptives and abortifacients or work for an employer who does 
cover them; she just can't use the machinery of the state to compel the 
believing employer to put up the money to pay for them.

Blessings,
Derek

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
Sent: Wednesday, October 03, 2012 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is the imposition of 
the employer's world view on the independent medical choices of the employee.  
No case has protected this kind of overreaching regarding conduct.

>From a philosophical perspective, it is the classic Nietzschean will to power. 
> That doesn't mean the belief is not sincere, but rather that the asserted 
>beliefs
no longer are solely about the practice of the individual but also about 
suppressing the practices of others.  The free exercise clause doesn't protect 
it.

On a different note, does anyone think that Title VII would permit a sexual 
harrassment, gender discrimination, or hostile work environment claim in the 
following scenario:

The employer is opposed to abortion on religious grounds, and posts 
anti-abortion signs in every woman's bathroom, which include a statement that
the employee who obtains an abortion will have problems.


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Marty Lederman < >
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wed, Oct 3, 2012 10:04 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"
Well, if the claim of a religious burden is -- as the plaintiffs in virtually 
all of these cases has alleged -- based upon the notion that the employer is 
prohibited from permitting its money to be used for contraception, even as 
mediated by independent decisions of others; and if, as the government alleges, 
in fact the actual cost to the employer of providing the plan is lower because 
of the inclusions of contraception (the use of which avoids much higher costs 
associated with pregnancy), then in a very real sense the employers' dollars 
are not being used, even remotely and indirectly, to subsidize contraception.  
Seems to me that, too, would significantly undermine the substantial burden 
claim, and not because of any governmental disagreement on the nature of 
religious obligations.
On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock < > wrote:
The b

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Marci,

The substantial burden theory here is not new, it’s merely another factual 
iteration of what the Supreme Court has previously recognized in cases like 
Yoder to be a substantial burden:   levying a financial penalty against an 
individual who refuses to violate his sincere religious beliefs (whatever those 
beliefs might be) is a per se substantial burden.As I noted earlier, the 
proper focus of whether there is a government imposed substantial burden  is an 
objective test that focuses on the action taken by the government, not the 
subjective feelings of the believer.   An objective substantial burden is an 
action by the government that coerces or tend to inhibit any religious 
exercise.   For example, Yoder makes clear that being fined for engaging in a 
particular act of religious exercise is objectively a substantial burden 
regardless of the particular nature of the religious exercise involved (e.g., 
wearing a yarmulke, sending kids to the public school, or being forced to 
purchase a product or service contrary to your beliefs).Objectively 
focusing on the nature of the action taken by the government avoids getting 
into a quagmire of analyzing the subjective nature about how the claimant feels 
about the government action.

I’m not smart enough to debate whether the religious claimants are channeling 
Nietzsche, but I suspect most of them are good people who simply wish the 
government would return things to the state of affairs that existed before it 
imposed the mandate.   That is, recognizing a religious accommodation to the 
mandate under RFRA merely returns things to the empirical world that existed 
pre- mandate: the non-believing employee still has the power to spend her money 
to purchase contraceptives and abortifacients or work for an employer who does 
cover them; she just can’t use the machinery of the state to compel the 
believing employer to put up the money to pay for them.

Blessings,
Derek

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu]
Sent: Wednesday, October 03, 2012 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is the imposition of 
the employer's world view on the independent medical choices of the employee.  
No case has protected this kind of overreaching regarding conduct.

From a philosophical perspective, it is the classic Nietzschean will to power.  
That doesn't mean the belief is not sincere, but rather that the asserted 
beliefs
no longer are solely about the practice of the individual but also about 
suppressing the practices of others.  The free exercise clause doesn't protect 
it.

On a different note, does anyone think that Title VII would permit a sexual 
harrassment, gender discrimination, or hostile work environment claim in the 
following scenario:

The employer is opposed to abortion on religious grounds, and posts 
anti-abortion signs in every woman's bathroom, which include a statement that
the employee who obtains an abortion will have problems.


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Marty Lederman < >
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wed, Oct 3, 2012 10:04 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"
Well, if the claim of a religious burden is -- as the plaintiffs in virtually 
all of these cases has alleged -- based upon the notion that the employer is 
prohibited from permitting its money to be used for contraception, even as 
mediated by independent decisions of others; and if, as the government alleges, 
in fact the actual cost to the employer of providing the plan is lower because 
of the inclusions of contraception (the use of which avoids much higher costs 
associated with pregnancy), then in a very real sense the employers' dollars 
are not being used, even remotely and indirectly, to subsidize contraception.  
Seems to me that, too, would significantly undermine the substantial burden 
claim, and not because of any governmental disagreement on the nature of 
religious obligations.
On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock < > wrote:
The burd

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Marci,

The substantial burden theory here is not new, it’s merely another factual 
iteration of what the Supreme Court has previously recognized in cases like 
Yoder to be a substantial burden:   levying a financial penalty against an 
individual who refuses to violate his sincere religious beliefs (whatever those 
beliefs might be) is a per se substantial burden.As I noted earlier, the 
proper focus of whether there is a government imposed substantial burden  is an 
objective test that focuses on the action taken by the government, not the 
subjective feelings of the believer.   An objective substantial burden is an 
action by the government that coerces or tend to inhibit any religious 
exercise.   For example, Yoder makes clear that being fined for engaging in a 
particular act of religious exercise is objectively a substantial burden 
regardless of the particular nature of the religious exercise involved (e.g., 
wearing a yarmulke, sending kids to the public school, or being forced to 
purchase a product or service contrary to your beliefs).Objectively 
focusing on the nature of the action taken by the government avoids getting 
into a quagmire of analyzing the subjective nature about how the claimant feels 
about the government action.

I’m not smart enough to debate whether the religious claimants are channeling 
Nietzsche, but I suspect most of them are good people who simply wish the 
government would return things to the state of affairs that existed before it 
imposed the mandate.   That is, recognizing a religious accommodation to the 
mandate under RFRA merely returns things to the empirical world that existed 
pre- mandate: the non-believing employee still has the power to spend her money 
to purchase contraceptives and abortifacients or work for an employer who does 
cover them; she just can’t use the machinery of the state to compel the 
believing employer to put up the money to pay for them.

Blessings,
Derek

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com
Sent: Wednesday, October 03, 2012 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is the imposition of 
the employer's world view on the independent medical choices of the employee.  
No case has protected this kind of overreaching regarding conduct.

From a philosophical perspective, it is the classic Nietzschean will to power.  
That doesn't mean the belief is not sincere, but rather that the asserted 
beliefs
no longer are solely about the practice of the individual but also about 
suppressing the practices of others.  The free exercise clause doesn't protect 
it.

On a different note, does anyone think that Title VII would permit a sexual 
harrassment, gender discrimination, or hostile work environment claim in the 
following scenario:

The employer is opposed to abortion on religious grounds, and posts 
anti-abortion signs in every woman's bathroom, which include a statement that
the employee who obtains an abortion will have problems.


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Marty Lederman mailto:lederman.ma...@gmail.com>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wed, Oct 3, 2012 10:04 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"
Well, if the claim of a religious burden is -- as the plaintiffs in virtually 
all of these cases has alleged -- based upon the notion that the employer is 
prohibited from permitting its money to be used for contraception, even as 
mediated by independent decisions of others; and if, as the government alleges, 
in fact the actual cost to the employer of providing the plan is lower because 
of the inclusions of contraception (the use of which avoids much higher costs 
associated with pregnancy), then in a very real sense the employers' dollars 
are not being used, even remotely and indirectly, to subsidize contraception.  
Seems to me that, too, would significantly undermine the substantial burden 
claim, and not because of any governmental disagreement on the nature of 

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Marci,

The substantial burden theory here is not new, it’s merely another factual 
iteration of what the Supreme Court has previously recognized in cases like 
Yoder to be a substantial burden:   levying a financial penalty against an 
individual who refuses to violate his sincere religious beliefs (whatever those 
beliefs might be) is a per se substantial burden.As I noted earlier, the 
proper focus of whether there is a government imposed substantial burden  is an 
objective test that focuses on the action taken by the government, not the 
subjective feelings of the believer.   An objective substantial burden is an 
action by the government that coerces or tend to inhibit any religious 
exercise.   For example, Yoder makes clear that being fined for engaging in a 
particular act of religious exercise is objectively a substantial burden 
regardless of the particular nature of the religious exercise involved (e.g., 
wearing a yarmulke, sending kids to the public school, or being forced to 
purchase a product or service contrary to your beliefs).Objectively 
focusing on the nature of the action taken by the government avoids getting 
into a quagmire of analyzing the subjective nature about how the claimant feels 
about the government action.

I’m not smart enough to debate whether the religious claimants are channeling 
Nietzsche, but I suspect most of them are good people who simply wish the 
government would return things to the state of affairs that existed before it 
imposed the mandate.   That is, recognizing a religious accommodation to the 
mandate under RFRA merely returns things to the empirical world that existed 
pre- mandate: the non-believing employee still has the power to spend her money 
to purchase contraceptives and abortifacients or work for an employer who does 
cover them; she just can’t use the machinery of the state to compel the 
believing employer to put up the money to pay for them.

Blessings,
Derek

Derek L. Gaubatz
IMB General Counsel

Our vision is a multitude from every language, people, tribe and nation knowing 
and worshipping our Lord Jesus Christ.

From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com
Sent: Wednesday, October 03, 2012 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is the imposition of 
the employer's world view on the independent medical choices of the employee.  
No case has protected this kind of overreaching regarding conduct.

From a philosophical perspective, it is the classic Nietzschean will to power.  
That doesn't mean the belief is not sincere, but rather that the asserted 
beliefs
no longer are solely about the practice of the individual but also about 
suppressing the practices of others.  The free exercise clause doesn't protect 
it.

On a different note, does anyone think that Title VII would permit a sexual 
harrassment, gender discrimination, or hostile work environment claim in the 
following scenario:

The employer is opposed to abortion on religious grounds, and posts 
anti-abortion signs in every woman's bathroom, which include a statement that
the employee who obtains an abortion will have problems.


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Marty Lederman mailto:lederman.ma...@gmail.com>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wed, Oct 3, 2012 10:04 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"
Well, if the claim of a religious burden is -- as the plaintiffs in virtually 
all of these cases has alleged -- based upon the notion that the employer is 
prohibited from permitting its money to be used for contraception, even as 
mediated by independent decisions of others; and if, as the government alleges, 
in fact the actual cost to the employer of providing the plan is lower because 
of the inclusions of contraception (the use of which avoids much higher costs 
associated with pregnancy), then in a very real sense the employers' dollars 
are not being used, even remotely and indirectly, to subsidize contracep

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Marci,

The substantial burden theory here is not new, it’s merely another factual 
iteration of what the Supreme Court has previously recognized in cases like 
Yoder to be a substantial burden:   levying a financial penalty against an 
individual who refuses to violate his sincere religious beliefs (whatever those 
beliefs might be) is a per se substantial burden.As I noted earlier, the 
proper focus of whether there is a government imposed substantial burden  is an 
objective test that focuses on the action taken by the government, not the 
subjective feelings of the believer.   An objective substantial burden is an 
action by the government that coerces or tend to inhibit any religious 
exercise.   For example, Yoder makes clear that being fined for engaging in a 
particular act of religious exercise is objectively a substantial burden 
regardless of the particular nature of the religious exercise involved (e.g., 
wearing a yarmulke, sending kids to the public school, or being forced to 
purchase a product or service contrary to your beliefs).Objectively 
focusing on the nature of the action taken by the government avoids getting 
into a quagmire of analyzing the subjective nature about how the claimant feels 
about the government action.

I’m not smart enough to debate whether the religious claimants are channeling 
Nietzsche, but I suspect most of them are good people who simply wish the 
government would return things to the state of affairs that existed before it 
imposed the mandate.   That is, recognizing a religious accommodation to the 
mandate under RFRA merely returns things to the empirical world that existed 
pre- mandate: the non-believing employee still has the power to spend her money 
to purchase contraceptives and abortifacients or work for an employer who does 
cover them; she just can’t use the machinery of the state to compel the 
believing employer to put up the money to pay for them.

Blessings,
Derek

Derek L. Gaubatz
IMB General Counsel

Our vision is a multitude from every language, people, tribe and nation knowing 
and worshipping our Lord Jesus Christ.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Wednesday, October 03, 2012 10:22 AM
To: religionlaw@lists.ucla.edu
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"

The "burden" in these cases is a newly configured theory of burden, wherein the 
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer 
disapproves of.  It is no longer about the believer him or herself, but also 
about the power of the believer to affect non-believer's choices relative to 
the believer's religious world view.  The key problem here is the imposition of 
the employer's world view on the independent medical choices of the employee.  
No case has protected this kind of overreaching regarding conduct.

From a philosophical perspective, it is the classic Nietzschean will to power.  
That doesn't mean the belief is not sincere, but rather that the asserted 
beliefs
no longer are solely about the practice of the individual but also about 
suppressing the practices of others.  The free exercise clause doesn't protect 
it.

On a different note, does anyone think that Title VII would permit a sexual 
harrassment, gender discrimination, or hostile work environment claim in the 
following scenario:

The employer is opposed to abortion on religious grounds, and posts 
anti-abortion signs in every woman's bathroom, which include a statement that
the employee who obtains an abortion will have problems.


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-Original Message-
From: Marty Lederman mailto:lederman.ma...@gmail.com>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Wed, Oct 3, 2012 10:04 am
Subject: Re: Court Rejects Religious Liberty Challenges To ACA 
Mandate--interpreting "substantial burden"
Well, if the claim of a religious burden is -- as the plaintiffs in virtually 
all of these cases has alleged -- based upon the notion that the employer is 
prohibited from permitting its money to be used for contraception, even as 
mediated by independent decisions of others; and if, as the government alleges, 
in fact the actual cost to the employer of providing the plan is lower because 
of the inclusions of contraception (the use of which avoids much higher costs 
associated with pregnancy), then in a very real sense the employers' dollars 
are not being used, even remotely and indirectly, to subsidize contraception.  
Seems to me that, too, would significantly undermine the substantial burden 
claim, and not because

Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Marci,

If you look back at what I stated below, I was not using the definition of 
“religious exercise” to alter what “substantial burden” means.   Instead, the 
point is that the Act provides a broad definition of what religious exercise 
may not be substantially burdened.   Therefore, the starting point is to 
precisely define what the religious exercise at issue is and see whether this 
religious exercise meet’s the Act’s definition of what may not be substantially 
burdened.  Once the threshold issue is cleared of determining whether the 
claimant has identified religious exercise protected by the Act, the analysis 
shifts to determining whether there is a government imposed substantial burden 
on that religious exercise.   I agree that the legislative history does say we 
should look to pre-Smith conceptions of substantial burden, which is why my 
analysis below applied Yoder, a pre-Smith case. 

I’d also add that the proper focus of whether there is a government imposed 
substantial burden  is an objective test that focuses on the action taken by 
the government, not the subjective feelings of the believer.   An objective 
substantial burden is an action by the government that coerces or tend to 
inhibit any religious exercise.   For example, Yoder makes clear that being 
fined for engaging in a particular act of religious exercise is objectively a 
substantial burden regardless of the particular nature of the religious 
exercise involved (e.g., wearing a yarmulke, sending kids to the public school, 
or being forced to purchase a product or service contrary to your beliefs).    
Objectively focusing on the nature of the action taken by the government avoids 
getting into a quagmire of analyzing the subjective nature about how the 
claimant feels about the government action.     

Blessings,
Derek

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com

Derek--   You don't mention, though, that the legislative history of RLUIPA is 
explicit that "substantial burden" means what it meant in the free exercise 
doctrine. 
You can't use the definition of "religious exercise" (which I view as 
reflecting Smith's dictum on the same) to alter the definition of "substantial."

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com

-----Original Message-
From: Gaubatz, Derek 
Dear Chip,
 
   Thomas is not mentioned in the findings of RFRA, but it’s holding is 
certainly incorporated into the definition of religious exercise in RFRA (and 
RLUIPA). In fact, it seems to me that much of the discussion on this list 
and in the O’Brien case of whether there is a substantial burden in these 
contraception/abortifacient cases has failed to focus in on RFRA’s definition 
of religious exercise.   Obviously, it is an important threshold issue to 
identify the precise religious exercise at issue before determining whether 
there is a substantial burden on that religious exercise.
 
    RFRA defines religious exercise (consistent with Thomas) as “any 
exercise of religion, whether or not compelled by, or central to, a system of 
religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5
 
   There are three noteworthy things about this definition.   First, like 
the text of the Free Exercise Clause itself, which does not limit the range or 
types of religious exercise eligible for protection, the Act's definition makes 
clear that “any” discrete instance of religious exercise is covered by the Act. 
 
   Second, not only does RFRA’s definition of “religious exercise” provide 
that “any” religious exercise is protected, it also makes explicit that this 
protection is not limited to practices that are compelled by the individual's 
religion. Thus, religious exercise that some might claim is discretionary on 
the part of the believer--e.g., a Catholic's desire to pray the rosary, a 
Muslim's desire to utilize prayer oils during daily prayers, or a Jewish 
believer's decision to wear a yarmulke--is also protected and may not be 
substantially burdened.   This aversion to adopting a requirement that 
religious exercise be mandated by a faith in order to be protected flows 
directly from the Supreme Court's holding in Thomas that “[c]ourts are not 
arbiters of scriptural interpretation.” To require a court to inquire into 
whether a particular religious practice is compelled by the believer's faith is 
to force a court into a role “not within the judicial function and judicial 
competence,” because it necessitates a judgment as to what a religion requires 
of its believers. If compulsion were a prerequisite, courts would soon be in 
the theological thicket as the state would seek to defeat a believer's claim of 
s

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Chip,

Thomas is not mentioned in the findings of RFRA, but it's holding is certainly 
incorporated into the definition of religious exercise in RFRA (and RLUIPA).
 In fact, it seems to me that much of the discussion on this list and in the 
O'Brien case of whether there is a substantial burden in these 
contraception/abortifacient cases has failed to focus in on RFRA's definition 
of religious exercise.   Obviously, it is an important threshold issue to 
identify the precise religious exercise at issue before determining whether 
there is a substantial burden on that religious exercise.

RFRA defines religious exercise (consistent with Thomas) as "any 
exercise of religion, whether or not compelled by, or central to, a system of 
religious belief." 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5

There are three noteworthy things about this definition.   First, like the text 
of the Free Exercise Clause itself, which does not limit the range or types of 
religious exercise eligible for protection, the Act's definition makes clear 
that "any" discrete instance of religious exercise is covered by the Act.

Second, not only does RFRA's definition of "religious exercise" provide that 
"any" religious exercise is protected, it also makes explicit that this 
protection is not limited to practices that are compelled by the individual's 
religion. Thus, religious exercise that some might claim is discretionary on 
the part of the believer--e.g., a Catholic's desire to pray the rosary, a 
Muslim's desire to utilize prayer oils during daily prayers, or a Jewish 
believer's decision to wear a yarmulke--is also protected and may not be 
substantially burdened.   This aversion to adopting a requirement that 
religious exercise be mandated by a faith in order to be protected flows 
directly from the Supreme Court's holding in Thomas that "[c]ourts are not 
arbiters of scriptural interpretation." To require a court to inquire into 
whether a particular religious practice is compelled by the believer's faith is 
to force a court into a role "not within the judicial function and judicial 
competence," because it necessitates a judgment as to what a religion requires 
of its believers. If compulsion were a prerequisite, courts would soon be in 
the theological thicket as the state would seek to defeat a believer's claim of 
substantial burden by introducing testimony of another member of the believer's 
faith who opines that the particular practice is not mandated.

Finally, RFRA's definition of religious exercise also makes explicit that 
consideration of whether the religious exercise at issue in the case is 
"central" (or fundamental) to a particular religion is irrelevant. Accordingly, 
particular acts of religious exercise are protected from being substantially 
burdened under RFRA, regardless of whether a judge (or government official or 
law professor or anybody else) feels they are not of sufficient importance to a 
religion to be worthy of protection.

With RFRA's definition of "religious exercise" in mind, what is the precise 
religious exercise involved in O'Brien and in other cases challenging the 
contraception/abortifacient mandate?   As I understand it, the religious 
exercise at issue is that the religious adherent (i.e., the employers in these 
cases) believes that it morally wrong to purchase a health care plan (in the 
case of a non-self insured employer) that includes 
contraceptives/abortifacients or to be forced to pay for 
contraceptives/abortifacients (in the case of an employer with a self-insured 
plan) As I understand it, there is no question in O'Brien (or any of the 
other cases) about the sincerity of this belief or that it is religiously based.

Once the focus is placed on the actual religious belief that is being exercised 
here, the question is then whether the mandate substantially burdens this 
religious exercise.   As I understand the mandate's operation, it says either 
you comply with the mandate and pay for a plan (or provide coverage in the case 
of a self-insured plan) that includes contraceptives/abortifacients or pay a 
penalty.   In other words, if the religious adherents here exercise their 
beliefs, they pay a penalty.   I agree that the exact contours of what amounts 
to a "substantial" burden is in doubt, but the Supreme Court has already spoken 
in Yoder in ruling that imposing a fine on one who exercises sincere religious 
beliefs is a substantial burden.   (If memory serves, the penalty for violating 
the law in Yoder was actually only $5).

The judge in O'Brien failed to focus on the particular religious belief at 
issue.   Instead, she did the classic side step that many courts are tempted to 
do in religious exercise cases and concluded that there was no burden here 
because the plaintiff was free to exercise his religion in other ways, opining 
that "Frank O'Brien is not prevented from keeping the Sabbath, from providing a 
religious upbringing for

RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden"

[Gaubatz, Derek]

Dear Chip,

Thomas is not mentioned in the findings of RFRA, but it's holding is certainly 
incorporated into the definition of religious exercise in RFRA (and RLUIPA).
 In fact, it seems to me that much of the discussion on this list and in the 
O'Brien case of whether there is a substantial burden in these 
contraception/abortifacient cases has failed to focus in on RFRA's definition 
of religious exercise.   Obviously, it is an important threshold issue to 
identify the precise religious exercise at issue before determining whether 
there is a substantial burden on that religious exercise.

RFRA defines religious exercise (consistent with Thomas) as "any 
exercise of religion, whether or not compelled by, or central to, a system of 
religious belief." 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5

There are three noteworthy things about this definition.   First, like the text 
of the Free Exercise Clause itself, which does not limit the range or types of 
religious exercise eligible for protection, the Act's definition makes clear 
that "any" discrete instance of religious exercise is covered by the Act.

Second, not only does RFRA's definition of "religious exercise" provide that 
"any" religious exercise is protected, it also makes explicit that this 
protection is not limited to practices that are compelled by the individual's 
religion. Thus, religious exercise that some might claim is discretionary on 
the part of the believer--e.g., a Catholic's desire to pray the rosary, a 
Muslim's desire to utilize prayer oils during daily prayers, or a Jewish 
believer's decision to wear a yarmulke--is also protected and may not be 
substantially burdened.   This aversion to adopting a requirement that 
religious exercise be mandated by a faith in order to be protected flows 
directly from the Supreme Court's holding in Thomas that "[c]ourts are not 
arbiters of scriptural interpretation." To require a court to inquire into 
whether a particular religious practice is compelled by the believer's faith is 
to force a court into a role "not within the judicial function and judicial 
competence," because it necessitates a judgment as to what a religion requires 
of its believers. If compulsion were a prerequisite, courts would soon be in 
the theological thicket as the state would seek to defeat a believer's claim of 
substantial burden by introducing testimony of another member of the believer's 
faith who opines that the particular practice is not mandated.

Finally, RFRA's definition of religious exercise also makes explicit that 
consideration of whether the religious exercise at issue in the case is 
"central" (or fundamental) to a particular religion is irrelevant. Accordingly, 
particular acts of religious exercise are protected from being substantially 
burdened under RFRA, regardless of whether a judge (or government official or 
law professor or anybody else) feels they are not of sufficient importance to a 
religion to be worthy of protection.

With RFRA's definition of "religious exercise" in mind, what is the precise 
religious exercise involved in O'Brien and in other cases challenging the 
contraception/abortifacient mandate?   As I understand it, the religious 
exercise at issue is that the religious adherent (i.e., the employers in these 
cases) believes that it morally wrong to purchase a health care plan (in the 
case of a non-self insured employer) that includes 
contraceptives/abortifacients or to be forced to pay for 
contraceptives/abortifacients (in the case of an employer with a self-insured 
plan) As I understand it, there is no question in O'Brien (or any of the 
other cases) about the sincerity of this belief or that it is religiously based.

Once the focus is placed on the actual religious belief that is being exercised 
here, the question is then whether the mandate substantially burdens this 
religious exercise.   As I understand the mandate's operation, it says either 
you comply with the mandate and pay for a plan (or provide coverage in the case 
of a self-insured plan) that includes contraceptives/abortifacients or pay a 
penalty.   In other words, if the religious adherents here exercise their 
beliefs, they pay a penalty.   I agree that the exact contours of what amounts 
to a "substantial" burden is in doubt, but the Supreme Court has already spoken 
in Yoder in ruling that imposing a fine on one who exercises sincere religious 
beliefs is a substantial burden.   (If memory serves, the penalty for violating 
the law in Yoder was actually only $5).

The judge in O'Brien failed to focus on the particular religious belief at 
issue.   Instead, she did the classic side step that many courts are tempted to 
do in religious exercise cases and concluded that there was no burden here 
because the plaintiff was free to exercise his religion in other ways, opining 
that "Frank O'Brien is not prevented from keeping the Sabbath, from providing a 
religious upbringing for