Re: "I would not have enacted this statute" - Justice Scalia on RLUIPA
Sandy, "an unusually stupid law" would have been priceless, but Stewart wrote "an uncommonly silly law." Judy Sent from my iPhone > On Oct 19, 2014, at 2:18 PM, Levinson, Sanford V > wrote: > > I don't share Chip's seeming consternation. Is this any different from > references to "an unusually stupid law" (Stewart as I recall in Griswold, > though it might have been Black, who also distanced himself) or Thomas in > Lawrence or, for that matter, Holmes in Lochner, depending on whether one > thinks that he found New York's law "tyrannical"? How is this different from > expressing great admiration for a given part of the Constitution instead of > simply saying "my job is to enforce its commands even if I consider them > stupid or even pernicious"? Scalia should get a pass on this one. > > Sandy > > Sent from my iPhone > > On Oct 19, 2014, at 7:37 PM, Ira Lupu wrote: > >> >> I'm a bit bewildered by Scalia's comment and the substantive reactions to >> it. Why in the world is a Justice telling us what he would have voted for >> as a Member of Congress, when that's not his role in the government? >> Perhaps he would not have voted for the NLRA or the APA either; should that >> affect the way he decides labor law or ad law questions under those Acts? >> There is a profound separation of powers problem screaming out from this >> comment. >> Or am I just being a hopeless and quaint naïf, believing that judges >> interpret the statutes enacted by other branches (even when the statutes >> build on prior judge-made doctrines) without regard to the judge's view of >> their legislative merits? Scalia (and all the rest) certainly have >> developed views of the compelling interest test, but that is quite >> irrelevant to whether they would vote to enact that test as legislation.. >> So what exactly is Scalia telling us to "bear in mind"? >>> On Sat, Oct 18, 2014 at 4:44 PM, James Oleske wrote: >>> I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was >>> struck a moment ago by this comment from Justice Scalia while discussing >>> "compelling state interest" standard with the Assistant SG: >>> >>> "We’re talking here about a compelling State interest. Bear in mind I would >>> not have enacted this statute, but there it is. It says there has to be a >>> compelling State interest. And you’re you’re asking, well, let’s balance >>> things; let’s be reasonable. Compelling State interest is not a >>> reasonableness test at all." >>> >>> A quick Google search indicates that one of the only places this comment >>> has gotten attention is over on Josh Blackmun's blog: >>> >>> "Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he >>> did write Smith. If so, would he also not have voted for RFRA, as applied >>> to the federal government (put aside the federalism problems)? That makes >>> his [joining the Court's] opinion in Hobby Lobby so much more significant." >>> >>> In answer to Josh's second question, I tend to think Justice Scalia would >>> not have voted for RFRA. Recall, he rejected application of the compelling >>> interest test in Smith in part because he viewed it as >>> >>> "horrible to contemplate that federal judges will regularly balance against >>> the importance of general laws the significance of religious practice" >>> >>> - Jim >>> >>> ___ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly or >>> wrongly) forward the messages to others. >> >> >> >> -- >> 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/AbsByAuth.cfm?per_id=181272#reg >> ___ >> To post, send message to Religionlaw@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> >> Please note that messages sent to this large list cannot be viewed as >> private. Anyone can subscribe to the list and read messages that are >> posted; people can read the Web archives; and list members can (rightly or >> wrongly) forward the messages to others. > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get pass
Re: Supreme Court Decides Town of Greece
I am a proud strict separationist and advocate of free exercise. I don't think even O'Connor would have thought this wasn't an endorsement. Judy Baer Sent from my iPhone > On May 5, 2014, at 5:10 PM, Steven Jamar wrote: > > As I said, continuing doctrinal chaos. I find it curious that anyone could > treat “tradition and history” as truly meaningful, substantive guidelines. > International Shoe “traditional notions of fair play and substantial > justice”, right to bear arms, incorporation, defining the line between state > and federal — all these and more have purported to rely on some version of > history and tradition — often while doing bad history, being painfully > selective in traditions, and not recognizing that tradition and history are > at least as often the problem to be moved away from as the guiding light to > be moved toward. > > For religious freedom, history and tradition are particularly ill-suited > insofar as the only result can be to constitutionalize the status quo – > whatever it may be. And so Christian prayers which by their inherent nature > exclude and when done in a public forum at the start of official governmental > meetings are not an endorsement of religion because of our history and > tradition. “In God We Trust” on money is an endorsement, of course, but one > that is allowed. > > I personally don’t mind if these things go on and I don’t care if the > constitution is interpreted to allow them under the > accommodation-becoming-endorsement approach of the court at this point > because I am not a strict separationist — I don’t think religious values > should be excised completely from public discourse or actions — but I do wish > that those who do these things and push these things would indeed recognize > that them for what they are — endorsements of religion by the state in a way > that excludes others. The minority adherents must tolerate a lot of this > sort of action by private and public players — that is our current > constitutional doctrine — the majority can impose on us quite a bit. But, > one would hope that this imposition will not keep creeping to the point of > actions excluding non-co-religionists from jobs, contracts, participation, > education and so on. > > These decisions are not neutral. They are not cost free. I wish the court > would address that with more candor, but it feels it must keep up the > pretense of an external, neutral guideline to seem on paper at least to not > be choosing sides. > > Steve > > > -- > Prof. Steven D. Jamar vox: 202-806-8017 > Director of International Programs, Institute for Intellectual Property and > Social Justice http://iipsj.org > Howard University School of Law fax: 202-806-8567 > http://sdjlaw.org > > “It’s all about you, using your own mind, without any method or schema, to > restore order from chaos. And once you have, you can sit back and say, ‘Hey, > the rest of my life may be a disaster, but at least I have a solution.’ ” > Marcel Danesi, in an interview about his book, “The Puzzle Instinct: The > Meaning of Puzzles in Human Life.” > >> On May 5, 2014, at 4:35 PM, Conkle, Daniel O. wrote: >> >> The Court says that Marsh is not merely “an exception,” but it goes on to >> write an opinion linked specifically to the context at hand, i.e., >> legislative prayer. As I read Kennedy’s opinion, the Court is saying that >> if history and tradition clearly approve a practice, then there is no need >> to invoke any broader or more general test. Conversely, the Court might >> need such a more general test if history and tradition are not so clear in >> the specific setting at hand. In any event, I don’t read the Court to be >> burying either Lemon or the endorsement test, at least not explicitly, even >> though the Court does not apply them here. >> >> It’s interesting that even the dissenters accept Marsh as valid even though >> they would reach a different result under their “fact-sensitive” (Breyer’s >> language) approach. >> >> Dan Conkle >> >> Daniel O. Conkle >> Robert H. McKinney Professor of Law >> Indiana University Maurer School of Law >> Bloomington, Indiana 47405 >> (812) 855-4331 >> fax (812) 855-0555 >> e-mail con...@indiana.edu >> >> >> >> >> >> . >> >> From: religionlaw-boun...@lists.ucla.edu >> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc Stern >> Sent: Monday, May 05, 2014 1:33 PM &
Re: RFRA's constitutionality
Marci, I share your discomfort with Yoder. Martha Nussbaum wrote that the impact of Yoder was worse for Amish girls than for Amish boys, because the boys learned marketable skills and the girls did not. So it was harder for girls to leave the community. Judy Baer Sent from my iPhone > On Jan 5, 2014, at 11:41 AM, Marci Hamilton wrote: > > Michael-- My answers are interlineated below > > > >> >> 1. Congress never debated the contraception mandate as part of Obamacare. >> Thus the religious right never lost in Congress, > I do not think this meets my point. The paid lobbyists for many religious > groups watched this statute closely and let their views be known. You don't > need a floor debate to lose in Congress. In fact, that describes > most legislation. Moreover, if they hadn't been paying attention, that is a > political loss in our system. > >> 2. Are there any reports of any women objecting formally? I understand they >> are the group that you claim are harmed, but surely they could sue and >> properly bring this issue. In reality, the vast majority of women will >> either receive coverage or continue to buy ella and Plan B (for-profit cases >> rarely oppose traditional contraception.) Sandra Fluke will get her >> contraception-- she's not working for one of the few companies impacted. > > It makes no sense to risk your job > until the courts rule on whether employers have RFRA rights to carve up > health plans according > to their religious lights. We shall see what is really at stake once the > Court rules. > > >> 3.The Establishment Clause sheds light on this because the contraception >> mandate pushes some religions out of a debate that has been very real on the >> value of contraception. You are assuming contraception helps women, and >> undoubtedly it helps many. But that is a value judgement, and the >> administration is using a regulation to try and end a debate on this (as I >> noted above, without Congress's approval. > > As a scientific matter, fully supported by many scientists, contraception > helps the entire society by reducing > health costs, freeing women to choose when to have children (ie, releasing > them from biological determination), treating rape victims, and treating many > serious illnesses including endometriosis. Those are facts, which are > included in the women's health care study which was basis of the > contraceptive mandate. > >> 4. There are only about 50 for-profit cases in a nation of hundreds of >> thousands of for-profit businesses. As of today, the exemption being argued >> for is extremely narrow, and it is unfair to say this is a vast "war on >> women" when this is a lot like Yoder, where few will want this exception. >> > > >> The exemption being requested has no meaningful boundary. The argument >> applies equally to emergency contraception and blood transfusions. In my >> view, treatment of a rape victim is as compelling an interest as a blood >> transfusion (treatment a Jehovah's Witness employer would object to). If >> these employers win, I expect children's vaccinations are next. > > >> Yoder opened the door for the many parents who claim a religious reason not >> to send their children to school, to the detriment of those children.I >> am not nearly as sanguine about Yoder as others, because my focus is on the >> needs of each and every child. > > > Marci > >> >> >>> On Sun, Jan 5, 2014 at 7:13 AM, Marci Hamilton wrote: >>> Well-said! The irony w RFRA is that it is a majoritarian statute parading >>> as a minority rights statute. In the US, religious lobbyists are some of >>> our most powerful. Their political purse, will,and power is >>> extraordinary. RFRA plays to their worst instincts by giving them a >>> second, large bite of the apple. >>> >>> As the Hobby Lobby cases illustrate so well: having lost the >>> anti-contraception battle in Congress, and the executive branch, despite >>> their enormous power especially when they band together, individual >>> religious actors can then go into a federal court w a standard designed to >>> hand-tailor the law to each of them. >>> >>> Who are the losers this time? Those traditionally oppressed or ignored, >>> women. Next time it will be children (clergy abuse/ medical >>> neglect/abandonment in polygamous marriages). Or unorganized taxpayers >>> (RLUIPA). Or unpaid creditors (diocesan bankruptcies). It
