RE: Hobby Lobby Question

[mallamud]

I think that the anti-war movement, despite the fact that some people 
did not want to pay taxes to support what they regarded as immorality, 
was different.  The Hobby Lobby case seems to me to be a battle in the 
culture wars.  Furthermore RFRA give people a colorable tool to use in 
courts.  Using RFRA against paying taxes seems so natural a move, that 
until the Supreme Court makes clear that RFRA does not afford a 
religious exemption from taxes, the forces that are using RFRA against 
Obama care will use RFRA against taxation.  For those wanting to make a 
point about getting respect for their religious views, use of RFRA is 
just to tempting not to use.  And without going to Court, many of them 
might well simply not pay taxes on the basis of RFRA and use RFRA to 
defend if the IRS ever has enough resources to come after them.  I think 
the first point was that the "voluntary" element of enforcing the tax 
system would be undermined.


 Jon

On 2014-07-07 05:12, Scarberry, Mark wrote:

Sandy,

Many people think millions of innocent babies have been intentionally
killed. It is nearly intolerable that a government would allow 
private

persons to do this (putting the child outside the protection of the
law), and unthinkable that a court would prevent the people from
acting through the other branches of government to stop it.

Once the government sets up a program of paying for mass abortion,
many people will think that the government is too evil to be treated
as legitimate. Resistance of various kinds would become morally
permissible or even required.

You asked how this could be distinguished from use of tax money for
unjust wars and for propping up terrible foreign regimes:

We have seen that when we try to replace terrible regimes abroad with
better ones, we sometimes only make things worse. Did the Shah do bad
things? Of course. Did our pressuring the Shah to allow Khomeini to
return improve the situation? The question answers itself.

Even in wars that many of us may think unnecessary and unjust, our
forces generally do not have a policy of intentionally killing
innocent noncombatants. We all know that there will be disagreements
about which wars need to be fought, and how they should be fought. 
The

vast majority of Americans are not thoroughgoing pacifists; we know
that we do need armed forces and that they will sometimes need to be
sent to war. But when soldiers intentionally kill innocent
noncombatants - not as an unwanted but unavoidable side-effect but
intentionally - we want the perpetrators to be prosecuted. When the
victims are innocent young children, we want even harsher punishment
of the perpetrators.

Abortion is an intentional killing of the fetus/unborn child. Only
rarely can the death be seen as an unwanted side effect. (Ectopic
pregnancies may be an exception.)

Yet if the government - our government, using resources taken from us
- starts paying doctors to kill innocent children? What would you do,
Sandy, if the government paid for vans to pick up unwanted children
and kill them? Resistance to paying taxes would probably be the
mildest reaction you would have. This may be too foreign to you for 
it
to be understandable, but that is how millions of Americans would 
feel

about massive levels of government funded abortions (or even
less-than-massive levels).

It's hard for me to believe that those who are strongly pro-life
really think in their gut that an early abortion is the same as the
murder of an innocent child. If they did, they would refuse to
tolerate such mass murder, and we would already have a civil war; or
at least we would unless the pro-life forces were convinced that
violence would lead to an even worse Hobbesian war of all against 
all.

Perhaps Christian teachings about non-violence or respect for
authority help to constrain what could otherwise be violent actions
taken in defense of innocent human life. There is occasional 
violence,

but nothing like what would happen if there were vans going around
picking up children and killing them, all under police protection. We
would get out our hunting rifles. (Actually, I'd go out and buy one,
if they were available.)

Now, the later the abortion, the more like child murder it becomes
(even for those who believe intellectually that all abortions are the
same), and the stronger the reaction; that explains why, if I'm
correct, the violence tends to be against doctors who perform late
term abortions that many people see as being little different from
infanticide. Even then, almost all pro-life people reject violence.

Mark

Mark S. Scarberry

Professor of Law

Pepperdine Univ. School of Law

FROM: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Levinson,
Sanford V
SENT: Sunday, July 06, 2014 7:45 PM
TO: Law & Religion issues for Law Academics
SUBJECT: Re: Hobby Lobby Question

Mark may well be r

Re: Hobby Lobby Question

[Paul Finkelman]

Mark with all due respect, infanticide is illegal everywhere in the US and 
anyone caught and convicted is punished.

Do you any evidence of mass killings of babies in this country?  I have never 
seen any evidence of this.  Infanticide is pretty rare.  


I know no jurisdiction that puts babies, infants, or children out of the 
protection of the law.  Can you name such a jurisdiction or give us a statute.

Paul Finkelman




 From: "Scarberry, Mark" 
To: Law & Religion issues for Law Academics  
Sent: Monday, July 7, 2014 5:12 AM
Subject: RE: Hobby Lobby Question
 


Sandy,
 
Many people think millions of innocent babies have been intentionally killed. 
It is nearly intolerable that a government would allow private persons to do 
this (putting the child outside the protection of the law), and unthinkable 
that a court would prevent the people from acting through the other branches of 
government to stop it. 
 
Once the government sets up a program of paying for mass abortion, many people 
will think that the government is too evil to be treated as legitimate. 
Resistance of various kinds would become morally permissible or even required.
 
You asked how this could be distinguished from use of tax money for unjust wars 
and for propping up terrible foreign regimes:
 
We have seen that when we try to replace terrible regimes abroad with better 
ones, we sometimes only make things worse. Did the Shah do bad things? Of 
course. Did our pressuring the Shah to allow Khomeini to return improve the 
situation? The question answers itself.
 
Even in wars that many of us may think unnecessary and unjust, our forces 
generally do not have a policy of intentionally killing innocent noncombatants. 
We all know that there will be disagreements about which wars need to be 
fought, and how they should be fought. The vast majority of Americans are not 
thoroughgoing pacifists; we know that we do need armed forces and that they 
will sometimes need to be sent to war. But when soldiers intentionally kill 
innocent noncombatants – not as an unwanted  but unavoidable side-effect but 
intentionally – we want the perpetrators to be prosecuted. When the victims are 
innocent young children, we want even harsher punishment of the perpetrators. 
 
Abortion is an intentional killing of the fetus/unborn child. Only rarely can 
the death be seen as an unwanted  side effect. (Ectopic pregnancies may be an 
exception.)
 
Yet if the government – our government, using resources taken from us – starts 
paying doctors to kill innocent children? What would you do, Sandy, if the 
government paid for vans to pick up unwanted children and kill them? Resistance 
to paying taxes would probably be the mildest reaction you would have. This may 
be too foreign to you for it to be understandable, but that is how millions of 
Americans would feel about massive levels of government funded abortions (or 
even less-than-massive levels). 
 
It’s hard for me to believe that those who are strongly pro-life really think 
in their gut that an early abortion is the same as the murder of an innocent 
child. If they did, they would refuse to tolerate such mass murder, and we 
would already have a civil war; or at least we would unless the pro-life forces 
were convinced that violence would lead to an even worse Hobbesian war of all 
against all. Perhaps Christian teachings about non-violence or respect for 
authority help to constrain what could otherwise be violent actions taken in 
defense of innocent human life. There is occasional violence, but nothing like 
what would happen if there were vans going around picking up children and 
killing them, all  under police protection. We would get out our hunting 
rifles. (Actually, I’d go out and buy one, if they were available.)
 
Now, the later the abortion, the more like child murder it becomes (even for 
those who believe intellectually that all abortions are the same),  and the 
stronger the reaction; that explains why, if I’m correct, the violence tends to 
be against doctors who perform late term abortions that many people see as 
being little different from infanticide. Even then, almost all pro-life people 
reject violence.
 
Mark
 
Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
 
 
 


From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, July 06, 2014 7:45 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question
 
Mark may well be right, but why would a clearly constitutional single payer 
system elicit such disobedience (and arguments about complicity) but the 
funding of deeply immoral wars and complicity with a number of terrible regimes 
do not?  This is meant as a serious question. Abortion has become like the 
Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of 
the Seven Years War, but  (we now know) t

RE: Hobby Lobby Question

[Scarberry, Mark]

Sandy,

Many people think millions of innocent babies have been intentionally killed. 
It is nearly intolerable that a government would allow private persons to do 
this (putting the child outside the protection of the law), and unthinkable 
that a court would prevent the people from acting through the other branches of 
government to stop it.

Once the government sets up a program of paying for mass abortion, many people 
will think that the government is too evil to be treated as legitimate. 
Resistance of various kinds would become morally permissible or even required.

You asked how this could be distinguished from use of tax money for unjust wars 
and for propping up terrible foreign regimes:

We have seen that when we try to replace terrible regimes abroad with better 
ones, we sometimes only make things worse. Did the Shah do bad things? Of 
course. Did our pressuring the Shah to allow Khomeini to return improve the 
situation? The question answers itself.

Even in wars that many of us may think unnecessary and unjust, our forces 
generally do not have a policy of intentionally killing innocent noncombatants. 
We all know that there will be disagreements about which wars need to be 
fought, and how they should be fought. The vast majority of Americans are not 
thoroughgoing pacifists; we know that we do need armed forces and that they 
will sometimes need to be sent to war. But when soldiers intentionally kill 
innocent noncombatants - not as an unwanted  but unavoidable side-effect but 
intentionally - we want the perpetrators to be prosecuted. When the victims are 
innocent young children, we want even harsher punishment of the perpetrators.

Abortion is an intentional killing of the fetus/unborn child. Only rarely can 
the death be seen as an unwanted  side effect. (Ectopic pregnancies may be an 
exception.)

Yet if the government - our government, using resources taken from us - starts 
paying doctors to kill innocent children? What would you do, Sandy, if the 
government paid for vans to pick up unwanted children and kill them? Resistance 
to paying taxes would probably be the mildest reaction you would have. This may 
be too foreign to you for it to be understandable, but that is how millions of 
Americans would feel about massive levels of government funded abortions (or 
even less-than-massive levels).

It's hard for me to believe that those who are strongly pro-life really think 
in their gut that an early abortion is the same as the murder of an innocent 
child. If they did, they would refuse to tolerate such mass murder, and we 
would already have a civil war; or at least we would unless the pro-life forces 
were convinced that violence would lead to an even worse Hobbesian war of all 
against all. Perhaps Christian teachings about non-violence or respect for 
authority help to constrain what could otherwise be violent actions taken in 
defense of innocent human life. There is occasional violence, but nothing like 
what would happen if there were vans going around picking up children and 
killing them, all  under police protection. We would get out our hunting 
rifles. (Actually, I'd go out and buy one, if they were available.)

Now, the later the abortion, the more like child murder it becomes (even for 
those who believe intellectually that all abortions are the same),  and the 
stronger the reaction; that explains why, if I'm correct, the violence tends to 
be against doctors who perform late term abortions that many people see as 
being little different from infanticide. Even then, almost all pro-life people 
reject violence.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Sunday, July 06, 2014 7:45 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

Mark may well be right, but why would a clearly constitutional single payer 
system elicit such disobedience (and arguments about complicity) but the 
funding of deeply immoral wars and complicity with a number of terrible regimes 
do not?  This is meant as a serious question. Abortion has become like the 
Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of 
the Seven Years War, but  (we now know) the trigger for the American 
Revolution.  Or is the better analogy to slavery, where compromise was 
ultimately impossible (for better or worse)?

Sandy

Sent from my iPhone

On Jul 6, 2014, at 4:14 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
And then we would have massive resistance that would make our largely voluntary 
tax system unworkable and create civil division at extreme levels.

Think, as mentioned at AALS, "peasants" with pitchforks.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone

 Origi

Re: Hobby Lobby Question

[Levinson, Sanford V]

Mark may well be right, but why would a clearly constitutional single payer 
system elicit such disobedience (and arguments about complicity) but the 
funding of deeply immoral wars and complicity with a number of terrible regimes 
do not?  This is meant as a serious question. Abortion has become like the 
Stamp Tax, a perfectly reasonable effort by the UK to recover from the costs of 
the Seven Years War, but  (we now know) the trigger for the American 
Revolution.  Or is the better analogy to slavery, where compromise was 
ultimately impossible (for better or worse)?

Sandy

Sent from my iPhone

On Jul 6, 2014, at 4:14 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:

And then we would have massive resistance that would make our largely voluntary 
tax system unworkable and create civil division at extreme levels.

Think, as mentioned at AALS, "peasants" with pitchforks.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: "Levinson, Sanford V"
Date:07/06/2014 11:13 AM (GMT-08:00)
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

I suppose that Jon's is the 64 billion dollar question. I think the answer 
would depend on the degree to which the single payer system was exclusive. If 
one could still purchase supplemental coverage (for heart transplants, say), 
then I assume the US could treat abortion as special. But if single-payer 
really did in all private insurance, then I assume that abortion would have to 
be covered.

Sandy

Sent from my iPhone

> On Jul 6, 2014, at 1:32 PM, "mallamud" 
> mailto:malla...@camden.rutgers.edu>> wrote:
>
> Why wouldn't the Congress ban coverage of abortions under a single-payer 
> system?
>   Jon
>
>> On 2014-07-01 22:22, Levinson, Sanford V wrote:
>> I do not understand why the complicity with evil rationale doesn't
>> apply to taxpayers ( like Thoreau). The argument against is either
>> that it would unduly burden the state to set up a c.o. system for tax
>> protesters or that it would invite strategic misrepresentation. Are
>> these sufficiently "compelling interests" to overcome undoubtedly
>> sincere (and correct) beliefs that one's taxes are supporting
>> oppression at home and around the world (as well as a lot of good
>> things). As Uwe Reindhart points out, the craziest American
>> exceptionalism is that workers are dependent on their employers for
>> medical insurance. Hobby Lobby is another good argument for
>> tax-financed single-payer coverage.
>>
>> Sandy
>>
>> Sent from my iPhone
>>
>> On Jun 30, 2014, at 11:48 PM, "Steven Jamar" 
>> mailto:stevenja...@gmail.com>
>> [13]> wrote:
>>
>>> The court accepts without inquiry the assertion that the complicity
>>> with evil theory is the problem that leads to the substantial
>>> burden. It merely accepts the claim that the adherents cannot comply
>>> because of the complicity theory. It then bootstraps that there
>>> would be costs of non-compliance.
>>> At the core the court buys the argument that an attenuated
>>> complicity can be the basis of a substantial burden.
>>>
>>> Sent from Steve's iPhone
>>>
>>> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer 
>>> mailto:artspit...@gmail.com>
>>> [10]> wrote:
>>>
>>>> I'm puzzled by Steve Jamar's statement that yesterday's decision
>>>> "arguably requires all courts to simply accept the religious
>>>> adherent's claim that the burden is substantial." The majority
>>>> analyzed whether the burden was substantial and found it was
>>>> because the ACA would impose millions of dollars of financial
>>>> penalties on the plaintiffs if they did not comply. Slip op. at
>>>> 32. I don't think the Court tells us whether a $100 fine would
>>>> have been a substantial burden. I'm curious what in the opinion
>>>> Steve points to in support of the proposition that courts may not
>>>> evaluate the substantiality of a burden, especially considering
>>>> that the Court did evaluate that question, as an empirical matter,
>>>> in this case.
>>>>
>>>> Art Spitzer
>>>>
>>>> WARNING: this message is subject to monitoring by the NSA.
>>>>
>>>> On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar
>>>> mailto:stevenja...@gmail.com> [7]> wrote:
>>>>
>>>>> Brown eliminat

RE: Hobby Lobby Question

[Scarberry, Mark]

And then we would have massive resistance that would make our largely voluntary 
tax system unworkable and create civil division at extreme levels.

Think, as mentioned at AALS, "peasants" with pitchforks.

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my Verizon Wireless 4G LTE Smartphone


 Original message 
From: "Levinson, Sanford V"
Date:07/06/2014 11:13 AM (GMT-08:00)
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

I suppose that Jon's is the 64 billion dollar question. I think the answer 
would depend on the degree to which the single payer system was exclusive. If 
one could still purchase supplemental coverage (for heart transplants, say), 
then I assume the US could treat abortion as special. But if single-payer 
really did in all private insurance, then I assume that abortion would have to 
be covered.

Sandy

Sent from my iPhone

> On Jul 6, 2014, at 1:32 PM, "mallamud"  wrote:
>
> Why wouldn't the Congress ban coverage of abortions under a single-payer 
> system?
>   Jon
>
>> On 2014-07-01 22:22, Levinson, Sanford V wrote:
>> I do not understand why the complicity with evil rationale doesn't
>> apply to taxpayers ( like Thoreau). The argument against is either
>> that it would unduly burden the state to set up a c.o. system for tax
>> protesters or that it would invite strategic misrepresentation. Are
>> these sufficiently "compelling interests" to overcome undoubtedly
>> sincere (and correct) beliefs that one's taxes are supporting
>> oppression at home and around the world (as well as a lot of good
>> things). As Uwe Reindhart points out, the craziest American
>> exceptionalism is that workers are dependent on their employers for
>> medical insurance. Hobby Lobby is another good argument for
>> tax-financed single-payer coverage.
>>
>> Sandy
>>
>> Sent from my iPhone
>>
>> On Jun 30, 2014, at 11:48 PM, "Steven Jamar" > [13]> wrote:
>>
>>> The court accepts without inquiry the assertion that the complicity
>>> with evil theory is the problem that leads to the substantial
>>> burden. It merely accepts the claim that the adherents cannot comply
>>> because of the complicity theory. It then bootstraps that there
>>> would be costs of non-compliance.
>>> At the core the court buys the argument that an attenuated
>>> complicity can be the basis of a substantial burden.
>>>
>>> Sent from Steve's iPhone
>>>
>>> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer >> [10]> wrote:
>>>
>>>> I'm puzzled by Steve Jamar's statement that yesterday's decision
>>>> "arguably requires all courts to simply accept the religious
>>>> adherent's claim that the burden is substantial." The majority
>>>> analyzed whether the burden was substantial and found it was
>>>> because the ACA would impose millions of dollars of financial
>>>> penalties on the plaintiffs if they did not comply. Slip op. at
>>>> 32. I don't think the Court tells us whether a $100 fine would
>>>> have been a substantial burden. I'm curious what in the opinion
>>>> Steve points to in support of the proposition that courts may not
>>>> evaluate the substantiality of a burden, especially considering
>>>> that the Court did evaluate that question, as an empirical matter,
>>>> in this case.
>>>>
>>>> Art Spitzer
>>>>
>>>> WARNING: this message is subject to monitoring by the NSA.
>>>>
>>>> On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar
>>>>  wrote:
>>>>
>>>>> Brown eliminated the constitutional doctrine of separate but
>>>>> equal -- in the Brown decision just for education, but it was
>>>>> applied to all racial classifications. The 1964 Civil Rights Act
>>>>> accomplished much more, of course, but the Brown decision
>>>>> matters a lot.
>>>>>
>>>>> So it is with numerous decisions. Hobby Lobby's acceptance of
>>>>> the complicity with evil theory in this attenuated context and
>>>>> its ruling that arguably requires all courts to simply accept
>>>>> the religious adherent's claim that the burden is substantial,
>>>>> could dramatically change the landscape of RFRA interpretation
>>>>> federally and by example at the state level. These underlying
>>>>> principles cou

Re: Hobby Lobby Question

[Levinson, Sanford V]

I suppose that Jon's is the 64 billion dollar question. I think the answer 
would depend on the degree to which the single payer system was exclusive. If 
one could still purchase supplemental coverage (for heart transplants, say), 
then I assume the US could treat abortion as special. But if single-payer 
really did in all private insurance, then I assume that abortion would have to 
be covered. 

Sandy

Sent from my iPhone

> On Jul 6, 2014, at 1:32 PM, "mallamud"  wrote:
> 
> Why wouldn't the Congress ban coverage of abortions under a single-payer 
> system?
>   Jon
> 
>> On 2014-07-01 22:22, Levinson, Sanford V wrote:
>> I do not understand why the complicity with evil rationale doesn't
>> apply to taxpayers ( like Thoreau). The argument against is either
>> that it would unduly burden the state to set up a c.o. system for tax
>> protesters or that it would invite strategic misrepresentation. Are
>> these sufficiently "compelling interests" to overcome undoubtedly
>> sincere (and correct) beliefs that one's taxes are supporting
>> oppression at home and around the world (as well as a lot of good
>> things). As Uwe Reindhart points out, the craziest American
>> exceptionalism is that workers are dependent on their employers for
>> medical insurance. Hobby Lobby is another good argument for
>> tax-financed single-payer coverage.
>> 
>> Sandy
>> 
>> Sent from my iPhone
>> 
>> On Jun 30, 2014, at 11:48 PM, "Steven Jamar" > [13]> wrote:
>> 
>>> The court accepts without inquiry the assertion that the complicity
>>> with evil theory is the problem that leads to the substantial
>>> burden. It merely accepts the claim that the adherents cannot comply
>>> because of the complicity theory. It then bootstraps that there
>>> would be costs of non-compliance.
>>> At the core the court buys the argument that an attenuated
>>> complicity can be the basis of a substantial burden.
>>> 
>>> Sent from Steve's iPhone
>>> 
>>> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer >> [10]> wrote:
>>> 
 I'm puzzled by Steve Jamar's statement that yesterday's decision
 "arguably requires all courts to simply accept the religious
 adherent's claim that the burden is substantial." The majority
 analyzed whether the burden was substantial and found it was
 because the ACA would impose millions of dollars of financial
 penalties on the plaintiffs if they did not comply. Slip op. at
 32. I don't think the Court tells us whether a $100 fine would
 have been a substantial burden. I'm curious what in the opinion
 Steve points to in support of the proposition that courts may not
 evaluate the substantiality of a burden, especially considering
 that the Court did evaluate that question, as an empirical matter,
 in this case.
 
 Art Spitzer
 
 WARNING: this message is subject to monitoring by the NSA.
 
 On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar
  wrote:
 
> Brown eliminated the constitutional doctrine of separate but
> equal -- in the Brown decision just for education, but it was
> applied to all racial classifications. The 1964 Civil Rights Act
> accomplished much more, of course, but the Brown decision
> matters a lot.
> 
> So it is with numerous decisions. Hobby Lobby's acceptance of
> the complicity with evil theory in this attenuated context and
> its ruling that arguably requires all courts to simply accept
> the religious adherent's claim that the burden is substantial,
> could dramatically change the landscape of RFRA interpretation
> federally and by example at the state level. These underlying
> principles could also be restricted by later decisions or
> expanded. It is a very troubling expansion of RFRA beyond what
> was intended originally. But that is hardly unique to this bit
> of legislation.
> 
> I think it is a very bad decision, but not even in the top ten.
> 
> --
> Prof. Steven D. Jamar vox: 202-806-8017 [1]
> Director of International Programs, Institute for Intellectual
> Property and Social Justice http://iipsj.org [2]
> Howard University School of Law fax: 202-806-8567 [3]
> http://sdjlaw.org [4]
> 
> "For all men of good will May 17, 1954, came as a joyous
> daybreak to end the long night of enforced segregation. . . . It
> served to transform the fatigue of despair into the buoyancy of
> hope."
> 
> Martin Luther King, Jr., in 1960 on Brown v. Board of Education
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu [5]
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [6]
> 
> 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 

Re: Hobby Lobby Question

[mallamud]

Why wouldn't the Congress ban coverage of abortions under a 
single-payer system?

   Jon

On 2014-07-01 22:22, Levinson, Sanford V wrote:

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

Sandy

 Sent from my iPhone

 On Jun 30, 2014, at 11:48 PM, "Steven Jamar"  wrote:


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

Sent from Steve's iPhone

On Jul 1, 2014, at 12:20 AM, Arthur Spitzer  wrote:


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

Art Spitzer

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

On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar
 wrote:


Brown eliminated the constitutional doctrine of separate but
equal -- in the Brown decision just for education, but it was
applied to all racial classifications. The 1964 Civil Rights Act
accomplished much more, of course, but the Brown decision
matters a lot.

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

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

--
Prof. Steven D. Jamar vox: 202-806-8017 [1]
Director of International Programs, Institute for Intellectual
Property and Social Justice http://iipsj.org [2]
Howard University School of Law fax: 202-806-8567 [3]
http://sdjlaw.org [4]

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

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

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Please note that messages sent to this large list cannot be viewed
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Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Ira Lupu]

I like Alan's argument too, though it doesn't fit so well with the O Centro
opinion, which emphasized "appreciable damage" to government interests from
the peyote exemption, rather than religious favoritism.  (N.B.  Non-Native
American religions do not have the benefit of the peyote exemption, nor to
my knowledge have any of those ever won a RFRA exemption, so religious
favoritism still inheres in the scheme.  And I seriously doubt whether the
non-Native American faiths could win such a case, because the government
can probably prove health harms or trafficking risks or both.)  Cf. Peyote
Way, Inc. v Thornburgh (5th Cir, 1991, pre-RFRA, post Smith..)


On Fri, Jul 4, 2014 at 5:17 PM, Alan Brownstein 
wrote:

>  I wonder if an implicit part of the Court's concern about underinclusion
> in O Centro is that there are constitutional concerns about religious
> equality and religious favoritism if the government grants an accommodation
> for one faith but denies it to another, arguably similarly situated, faith.
> Or to put it slightly differently, once the government recognizes that
> religious liberty concerns justify an accommodation from a particular law
> for a particular faith, the government has some burden to explain why those
> same religious liberty concerns do not justify an accommodation from the
> same law for a different faith. If I remember O Centro correctly (and its
> been a while since I read the Court's decision) the government was
> insisting that the mere fact that the tea that was used in the religious
> ritual was on the controlled substances list was a sufficient showing to
> establish a compelling interest in seizing the tea. At that level of
> generality, it is hard to accept that one faith deserves an exemption from
> the controlled substances law but another does not.
>
>
>
> I don't suggest that this is the only basis for distinguishing O Centro
> and Hobby Lobby, but it may be part of the story.
>
>
>
> Alan
>  --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [
> icl...@law.gwu.edu]
> *Sent:* Friday, July 04, 2014 11:56 AM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby
> Question"]
>
>Chris, I think you are exactly right on the merits of distinguishing
> HL from O Centro on this point (that grandfathering is a transition
> process, and peyote exception is permanent).  The mystery to me is that no
> one on the Court, on either side, thinks it necessary to respond to the O
> Centro based argument from underinclusion, when that argument was so
> popular in the lower courts (including in the Tenth Circuit en banc in
> Hobby Lobby).  They all just treat it like an embarrassing relative in the
> room, rather than the elephant it might have been.  And that does raise a
> number of questions, including the force of O Centro on this point going
> forward.
>
>
> On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund  wrote:
>
>>  Sorry, Chip, I sent my post before I got your previous post.  Forgive
>> me for that—I think I get what you mean: O Centro says the exception for
>> peyote is enough to necessitate an exception for hoasca; Hobby Lobby
>> rejects the grandfathered exceptions as enough to necessitate the religious
>> for-profit exception.  I don’t have much to say; maybe you’re right there’s
>> some inconsistency here.  But Marty has written on this before, and I’ve
>> always thought him right: The grandfather exceptions are temporary, meant
>> to ease the government’s interests in minimizing administrative burdens,
>> ensuring coverage, and maintaining continuity of coverage.  That’s enough
>> to defeat the underinclusion argument in Hobby Lobby.  If Congress’s
>> approval of peyote for Native American religious believers had a sunset
>> provision, I can’t imagine the Court would have relied on that very heavily
>> in O Centro.
>>
>>
>>
>> I’m saying this without the Hobby Lobby opinions in front of me.
>>
>>
>>
>> Best,
>> Chris
>>
>>
>>
>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
>> *Sent:* Friday, July 04, 2014 2:13 PM
>>
>> *To:* Law & Religion issues for Law Academics
>>  *Subject:* Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby
>> Question"]
>>
>>
>>
>> I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that
>> said the government's interests in maximizing coverage of pregnancy
>&g

RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Alan Brownstein]

I wonder if an implicit part of the Court's concern about underinclusion in O 
Centro is that there are constitutional concerns about religious equality and 
religious favoritism if the government grants an accommodation for one faith 
but denies it to another, arguably similarly situated, faith. Or to put it 
slightly differently, once the government recognizes that religious liberty 
concerns justify an accommodation from a particular law for a particular faith, 
the government has some burden to explain why those same religious liberty 
concerns do not justify an accommodation from the same law for a different 
faith. If I remember O Centro correctly (and its been a while since I read the 
Court's decision) the government was insisting that the mere fact that the tea 
that was used in the religious ritual was on the controlled substances list was 
a sufficient showing to establish a compelling interest in seizing the tea. At 
that level of generality, it is hard to accept that one faith deserves an 
exemption from the controlled substances law but another does not.



I don't suggest that this is the only basis for distinguishing O Centro and 
Hobby Lobby, but it may be part of the story.



Alan


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Ira Lupu [icl...@law.gwu.edu]
Sent: Friday, July 04, 2014 11:56 AM
To: Law & Religion issues for Law Academics
Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

Chris, I think you are exactly right on the merits of distinguishing HL from O 
Centro on this point (that grandfathering is a transition process, and peyote 
exception is permanent).  The mystery to me is that no one on the Court, on 
either side, thinks it necessary to respond to the O Centro based argument from 
underinclusion, when that argument was so popular in the lower courts 
(including in the Tenth Circuit en banc in Hobby Lobby).  They all just treat 
it like an embarrassing relative in the room, rather than the elephant it might 
have been.  And that does raise a number of questions, including the force of O 
Centro on this point going forward.


On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund 
mailto:l...@wayne.edu>> wrote:
Sorry, Chip, I sent my post before I got your previous post.  Forgive me for 
that—I think I get what you mean: O Centro says the exception for peyote is 
enough to necessitate an exception for hoasca; Hobby Lobby rejects the 
grandfathered exceptions as enough to necessitate the religious for-profit 
exception.  I don’t have much to say; maybe you’re right there’s some 
inconsistency here.  But Marty has written on this before, and I’ve always 
thought him right: The grandfather exceptions are temporary, meant to ease the 
government’s interests in minimizing administrative burdens, ensuring coverage, 
and maintaining continuity of coverage.  That’s enough to defeat the 
underinclusion argument in Hobby Lobby.  If Congress’s approval of peyote for 
Native American religious believers had a sunset provision, I can’t imagine the 
Court would have relied on that very heavily in O Centro.

I’m saying this without the Hobby Lobby opinions in front of me.

Best,
Chris

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Ira Lupu
Sent: Friday, July 04, 2014 2:13 PM

To: Law & Religion issues for Law Academics
Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that said 
the government's interests in maximizing coverage of pregnancy prevention 
services is not compelling.  And they did NOT get that, which is why litigation 
will continue for years.  I'm still asking whether the different treatment of 
underinclusion in O Centro and HL is sound as a matter of legal reasoning, or 
is based on something else.  And I haven't seen an answer that responds in 
those terms.

On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund 
mailto:l...@wayne.edu>> wrote:
I think Marty has it exactly right here.  And I find it interesting how the 
Court sees RFRA largely as giving it greater leeway in deciding what counts as 
underinclusion. It’s not unlimited leeway, of course, for the reasons that 
Eugene gives.  But if the issue was Free Exercise alone, I don’t think the 
exception for peyote would have mattered for hoasca (O Centro), or the 
exception for religious non-profits would count for for-profits (Hobby Lobby), 
or 40+ states making exceptions for beards would count for Muslims in Arkansas 
(the next case, Holt v. Hobbs).  Those won’t count as exceptions for Free 
Exercise purposes, but they do count for RFRA purposes—or RLUIPA purposes, as 
in the last example.

Cont

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Ira Lupu]

Chris, I think you are exactly right on the merits of distinguishing HL
from O Centro on this point (that grandfathering is a transition process,
and peyote exception is permanent).  The mystery to me is that no one on
the Court, on either side, thinks it necessary to respond to the O Centro
based argument from underinclusion, when that argument was so popular in
the lower courts (including in the Tenth Circuit en banc in Hobby Lobby).
 They all just treat it like an embarrassing relative in the room, rather
than the elephant it might have been.  And that does raise a number of
questions, including the force of O Centro on this point going forward.


On Fri, Jul 4, 2014 at 2:28 PM, Christopher Lund  wrote:

> Sorry, Chip, I sent my post before I got your previous post.  Forgive me
> for that—I think I get what you mean: O Centro says the exception for
> peyote is enough to necessitate an exception for hoasca; Hobby Lobby
> rejects the grandfathered exceptions as enough to necessitate the religious
> for-profit exception.  I don’t have much to say; maybe you’re right there’s
> some inconsistency here.  But Marty has written on this before, and I’ve
> always thought him right: The grandfather exceptions are temporary, meant
> to ease the government’s interests in minimizing administrative burdens,
> ensuring coverage, and maintaining continuity of coverage.  That’s enough
> to defeat the underinclusion argument in Hobby Lobby.  If Congress’s
> approval of peyote for Native American religious believers had a sunset
> provision, I can’t imagine the Court would have relied on that very heavily
> in O Centro.
>
>
>
> I’m saying this without the Hobby Lobby opinions in front of me.
>
>
>
> Best,
> Chris
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Friday, July 04, 2014 2:13 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby
> Question"]
>
>
>
> I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that
> said the government's interests in maximizing coverage of pregnancy
> prevention services is not compelling.  And they did NOT get that, which is
> why litigation will continue for years.  I'm still asking whether the
> different treatment of underinclusion in O Centro and HL is sound as a
> matter of legal reasoning, or is based on something else.  And I haven't
> seen an answer that responds in those terms.
>
>
>
> On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund  wrote:
>
> I think Marty has it exactly right here.  And I find it interesting how
> the Court sees RFRA largely as giving it greater leeway in deciding what
> counts as underinclusion. It’s not unlimited leeway, of course, for the
> reasons that Eugene gives.  But if the issue was Free Exercise alone, I
> don’t think the exception for peyote would have mattered for hoasca (O
> Centro), or the exception for religious non-profits would count for
> for-profits (Hobby Lobby), or 40+ states making exceptions for beards would
> count for Muslims in Arkansas (the next case, Holt v. Hobbs).  Those won’t
> count as exceptions for Free Exercise purposes, but they do count for RFRA
> purposes—or RLUIPA purposes, as in the last example.
>
>
>
> Continuing in this vein, it surprises me how RFRA analysis almost always
> proceeds the same way that Free Exercise Clause analysis proceeds: The
> challengers must find exceptions somewhere; what RFRA enables is a wider
> field of vision in deciding what counts as an “exception.”  And In this
> sense, Hobby Lobby is a win for the government here.  Hobby Lobby really
> wanted a decision that said that exemptions didn’t matter and that
> religious liberty simply trumped women’s access to contraception.  That is
> very far from the Court’s actual reasoning.
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> (313) 577-9016 (fax)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
>
> On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman 
> wrote:
>
> I don't think the HL Court does move away from the O Centro analysis on
> underinclusiveness.  It treats the HHS "secondary accommodation" just as
> the O Centro court treated the marijuana exception--as a case in which the
> government could not explain why the reason

RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Christopher Lund]

And forgive me if I raise issues and then run—or if I’ve said something 
incomprehensible—I have to run to a barbeque and won’t be able to post more 
today….



From: Christopher Lund [mailto:l...@wayne.edu]
Sent: Friday, July 04, 2014 2:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby 
Question"]



Sorry, Chip, I sent my post before I got your previous post.  Forgive me for 
that—I think I get what you mean: O Centro says the exception for peyote is 
enough to necessitate an exception for hoasca; Hobby Lobby rejects the 
grandfathered exceptions as enough to necessitate the religious for-profit 
exception.  I don’t have much to say; maybe you’re right there’s some 
inconsistency here.  But Marty has written on this before, and I’ve always 
thought him right: The grandfather exceptions are temporary, meant to ease 
the government’s interests in minimizing administrative burdens, ensuring 
coverage, and maintaining continuity of coverage.  That’s enough to defeat 
the underinclusion argument in Hobby Lobby.  If Congress’s approval of 
peyote for Native American religious believers had a sunset provision, I can’t 
imagine the Court would have relied on that very heavily in O Centro.



I’m saying this without the Hobby Lobby opinions in front of me.



Best,
Chris



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, July 04, 2014 2:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby 
Question"]



I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that said 
the government's interests in maximizing coverage of pregnancy prevention 
services is not compelling.  And they did NOT get that, which is why 
litigation will continue for years.  I'm still asking whether the different 
treatment of underinclusion in O Centro and HL is sound as a matter of legal 
reasoning, or is based on something else.  And I haven't seen an answer that 
responds in those terms.



On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund  wrote:

I think Marty has it exactly right here.  And I find it interesting how the 
Court sees RFRA largely as giving it greater leeway in deciding what counts 
as underinclusion. It’s not unlimited leeway, of course, for the reasons 
that Eugene gives.  But if the issue was Free Exercise alone, I don’t think 
the exception for peyote would have mattered for hoasca (O Centro), or the 
exception for religious non-profits would count for for-profits (Hobby 
Lobby), or 40+ states making exceptions for beards would count for Muslims 
in Arkansas (the next case, Holt v. Hobbs).  Those won’t count as exceptions 
for Free Exercise purposes, but they do count for RFRA purposes—or RLUIPA 
purposes, as in the last example.



Continuing in this vein, it surprises me how RFRA analysis almost always 
proceeds the same way that Free Exercise Clause analysis proceeds: The 
challengers must find exceptions somewhere; what RFRA enables is a wider 
field of vision in deciding what counts as an “exception.”  And In this 
sense, Hobby Lobby is a win for the government here.  Hobby Lobby really 
wanted a decision that said that exemptions didn’t matter and that religious 
liberty simply trumped women’s access to contraception.  That is very far 
from the Court’s actual reasoning.



Best,

Chris

___

Christopher C. Lund

Associate Professor of Law

Wayne State University Law School

471 West Palmer St.

Detroit, MI  48202

l...@wayne.edu

(313) 577-4046 (phone)

(313) 577-9016 (fax)

Website—http://law.wayne.edu/profile/christopher.lund/

Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402



On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman  
wrote:

I don't think the HL Court does move away from the O Centro analysis on 
underinclusiveness.  It treats the HHS "secondary accommodation" just as the 
O Centro court treated the marijuana exception--as a case in which the 
government could not explain why the reasons for creating that exception 
would not apply with full force to the requested exemption.  The line the 
government had drawn, in other words, was arbitrary as far as the Court was 
concerned.



On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:

Eugene's arguments here are very strong.  Exceptions to federal laws are 
frequent, and sometimes based on weak policy reasons.



But then what do we make of the unanimous decision in O Centro, in which the 
Court characterizes the peyote exception for members of Native American 
tribes as doing "appreciable damage" to the government's interest in 
limiting access to controlled substances, and therefore undermining the 
argument against a RFRA exception from the Controlled Substances Act for 
hoasca tea?  In the lo

RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Christopher Lund]

Sorry, Chip, I sent my post before I got your previous post.  Forgive me for 
that—I think I get what you mean: O Centro says the exception for peyote is 
enough to necessitate an exception for hoasca; Hobby Lobby rejects the 
grandfathered exceptions as enough to necessitate the religious for-profit 
exception.  I don’t have much to say; maybe you’re right there’s some 
inconsistency here.  But Marty has written on this before, and I’ve always 
thought him right: The grandfather exceptions are temporary, meant to ease 
the government’s interests in minimizing administrative burdens, ensuring 
coverage, and maintaining continuity of coverage.  That’s enough to defeat 
the underinclusion argument in Hobby Lobby.  If Congress’s approval of 
peyote for Native American religious believers had a sunset provision, I can’t 
imagine the Court would have relied on that very heavily in O Centro.



I’m saying this without the Hobby Lobby opinions in front of me.



Best,
Chris



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, July 04, 2014 2:13 PM
To: Law & Religion issues for Law Academics
Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby 
Question"]



I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that said 
the government's interests in maximizing coverage of pregnancy prevention 
services is not compelling.  And they did NOT get that, which is why 
litigation will continue for years.  I'm still asking whether the different 
treatment of underinclusion in O Centro and HL is sound as a matter of legal 
reasoning, or is based on something else.  And I haven't seen an answer that 
responds in those terms.



On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund  wrote:

I think Marty has it exactly right here.  And I find it interesting how the 
Court sees RFRA largely as giving it greater leeway in deciding what counts 
as underinclusion. It’s not unlimited leeway, of course, for the reasons 
that Eugene gives.  But if the issue was Free Exercise alone, I don’t think 
the exception for peyote would have mattered for hoasca (O Centro), or the 
exception for religious non-profits would count for for-profits (Hobby 
Lobby), or 40+ states making exceptions for beards would count for Muslims 
in Arkansas (the next case, Holt v. Hobbs).  Those won’t count as exceptions 
for Free Exercise purposes, but they do count for RFRA purposes—or RLUIPA 
purposes, as in the last example.



Continuing in this vein, it surprises me how RFRA analysis almost always 
proceeds the same way that Free Exercise Clause analysis proceeds: The 
challengers must find exceptions somewhere; what RFRA enables is a wider 
field of vision in deciding what counts as an “exception.”  And In this 
sense, Hobby Lobby is a win for the government here.  Hobby Lobby really 
wanted a decision that said that exemptions didn’t matter and that religious 
liberty simply trumped women’s access to contraception.  That is very far 
from the Court’s actual reasoning.



Best,

Chris

___

Christopher C. Lund

Associate Professor of Law

Wayne State University Law School

471 West Palmer St.

Detroit, MI  48202

l...@wayne.edu

(313) 577-4046 (phone)

(313) 577-9016 (fax)

Website—http://law.wayne.edu/profile/christopher.lund/

Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402



On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman  
wrote:

I don't think the HL Court does move away from the O Centro analysis on 
underinclusiveness.  It treats the HHS "secondary accommodation" just as the 
O Centro court treated the marijuana exception--as a case in which the 
government could not explain why the reasons for creating that exception 
would not apply with full force to the requested exemption.  The line the 
government had drawn, in other words, was arbitrary as far as the Court was 
concerned.



On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:

Eugene's arguments here are very strong.  Exceptions to federal laws are 
frequent, and sometimes based on weak policy reasons.



But then what do we make of the unanimous decision in O Centro, in which the 
Court characterizes the peyote exception for members of Native American 
tribes as doing "appreciable damage" to the government's interest in 
limiting access to controlled substances, and therefore undermining the 
argument against a RFRA exception from the Controlled Substances Act for 
hoasca tea?  In the lower federal courts,  this move from O Centro was 
repeatedly cited in support of a conclusion that exceptions to the 
contraceptive mandate (primarily the grandfathering of pre-ACA plans) 
undermined the weight of the government's interest in denying a RFRA 
exception.  What happened to that argument in Hobby Lobby?  Was it just a 
makeweight, poorly reasoned argument to begin with?  Or is th

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Ira Lupu]

I'm sure that Hobby Lobby (and Notre Dame, etc.) wanted a decision that
said the government's interests in maximizing coverage of pregnancy
prevention services is not compelling.  And they did NOT get that, which is
why litigation will continue for years.  I'm still asking whether the
different treatment of underinclusion in O Centro and HL is sound as a
matter of legal reasoning, or is based on something else.  And I haven't
seen an answer that responds in those terms.


On Fri, Jul 4, 2014 at 2:05 PM, Christopher Lund  wrote:

> I think Marty has it exactly right here.  And I find it interesting how
> the Court sees RFRA largely as giving it greater leeway in deciding what
> counts as underinclusion. It’s not unlimited leeway, of course, for the
> reasons that Eugene gives.  But if the issue was Free Exercise alone, I
> don’t think the exception for peyote would have mattered for hoasca (O
> Centro), or the exception for religious non-profits would count for
> for-profits (Hobby Lobby), or 40+ states making exceptions for beards would
> count for Muslims in Arkansas (the next case, Holt v. Hobbs).  Those won’t
> count as exceptions for Free Exercise purposes, but they do count for RFRA
> purposes—or RLUIPA purposes, as in the last example.
>
>
>
> Continuing in this vein, it surprises me how RFRA analysis almost always
> proceeds the same way that Free Exercise Clause analysis proceeds: The
> challengers must find exceptions somewhere; what RFRA enables is a wider
> field of vision in deciding what counts as an “exception.”  And In this
> sense, Hobby Lobby is a win for the government here.  Hobby Lobby really
> wanted a decision that said that exemptions didn’t matter and that
> religious liberty simply trumped women’s access to contraception.  That is
> very far from the Court’s actual reasoning.
>
>
>
> Best,
>
> Chris
>
> ___
>
> Christopher C. Lund
>
> Associate Professor of Law
>
> Wayne State University Law School
>
> 471 West Palmer St.
>
> Detroit, MI  48202
>
> l...@wayne.edu
>
> (313) 577-4046 (phone)
>
> (313) 577-9016 (fax)
>
> Website—http://law.wayne.edu/profile/christopher.lund/
>
> Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>
>
>
>
> On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman 
> wrote:
>
> I don't think the HL Court does move away from the O Centro analysis on
> underinclusiveness.  It treats the HHS "secondary accommodation" just as
> the O Centro court treated the marijuana exception--as a case in which the
> government could not explain why the reasons for creating that exception
> would not apply with full force to the requested exemption.  The line the
> government had drawn, in other words, was arbitrary as far as the Court was
> concerned.
>
>
>
> On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:
>
> Eugene's arguments here are very strong.  Exceptions to federal laws are
> frequent, and sometimes based on weak policy reasons.
>
>
>
> But then what do we make of the unanimous decision in O Centro, in which
> the Court characterizes the peyote exception for members of Native American
> tribes as doing "appreciable damage" to the government's interest in
> limiting access to controlled substances, and therefore undermining the
> argument against a RFRA exception from the Controlled Substances Act for
> hoasca tea?  In the lower federal courts,  this move from O Centro was
> repeatedly cited in support of a conclusion that exceptions to the
> contraceptive mandate (primarily the grandfathering of pre-ACA plans)
> undermined the weight of the government's interest in denying a RFRA
> exception.  What happened to that argument in Hobby Lobby?  Was it just a
> makeweight, poorly reasoned argument to begin with?  Or is there a
> difference between the O Centro context and the Hobby Lobby context that
> explains the move away from O Centro's treatment of underinclusion?
>
>
>
> On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene 
> wrote:
>
>I appreciate Mark’s argument, but I wonder how far it
> goes.  Tax law is an excellent example.  There may be “a very strong
> reason” for having many tens of millions of people pay no income tax at
> all.  But I doubt that there’s a very strong reason for every single tax
> exemption out there.  There are legitimate reasons, to be sure, plausible
> reasons, but not “very strong” ones, and maybe not even “strong” ones.  And
> many might have seemed strong once, but now remain chiefly because of
> legislative inertia.  Does the conclusion that there are not-very-strong
> reasons for some secular exemptions mean that there has to be a religious
> exemption?
>
>
>
>Likewise, consider the Copyright Act, which contains a
> prohibition on various uses of a copyrighted work in sec. 106, and then
> about 15 sections starting with sec. 107 setting forth exemptions; many of
> those sections have quite different subsections, so there are dozens of
> exceptions.  For some, there may 

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Ira Lupu]

Yes, Marty, that argument is rejected by the dissenters plus AMK.  The
question is whether they think that O Centro's version of the
underinclusion argument is wrongheaded and should not be followed in the
future, or whether there are good reasons to treat the underinclusion in HL
differently.  See any discussion of O Centro on this point in any of the HL
opinions?  That's what I am probing.


On Fri, Jul 4, 2014 at 2:00 PM, Marty Lederman 
wrote:

> Oh, if you're referring to the grandfathering discussion, I'd agree . . .
> except that it's rejected by a majority of the Court.
>
>
> On Fri, Jul 4, 2014 at 1:48 PM, Ira Lupu  wrote:
>
>> But why should the Court have cared about the reasons for the
>> accommodation of non-profits, if underinclusion (independent of that
>> accommodation) did "appreciable damage" to government's interest and
>> therefore rendered it uncompelling?  The accommodation never gets into the
>> picture if underinclusion is fatal at the compelling interest step.  So
>> something has changed analytically.  Just AMK being inconsistent and
>> holding out?  Or are there reasons to say O Centro was right on this point,
>> and Hobby Lobby right not to follow it?
>>
>>
>> On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman 
>> wrote:
>>
>>> I don't think the HL Court does move away from the O Centro analysis on
>>> underinclusiveness.  It treats the HHS "secondary accommodation" just as
>>> the O Centro court treated the marijuana exception--as a case in which the
>>> government could not explain why the reasons for creating that exception
>>> would not apply with full force to the requested exemption.  The line the
>>> government had drawn, in other words, was arbitrary as far as the Court was
>>> concerned.
>>>
>>>
>>> On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:
>>>
 Eugene's arguments here are very strong.  Exceptions to federal laws
 are frequent, and sometimes based on weak policy reasons.

 But then what do we make of the unanimous decision in O Centro, in
 which the Court characterizes the peyote exception for members of Native
 American tribes as doing "appreciable damage" to the government's interest
 in limiting access to controlled substances, and therefore undermining the
 argument against a RFRA exception from the Controlled Substances Act for
 hoasca tea?  In the lower federal courts,  this move from O Centro was
 repeatedly cited in support of a conclusion that exceptions to the
 contraceptive mandate (primarily the grandfathering of pre-ACA plans)
 undermined the weight of the government's interest in denying a RFRA
 exception.  What happened to that argument in Hobby Lobby?  Was it just a
 makeweight, poorly reasoned argument to begin with?  Or is there a
 difference between the O Centro context and the Hobby Lobby context that
 explains the move away from O Centro's treatment of underinclusion?


 On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene 
 wrote:

>I appreciate Mark’s argument, but I wonder how far it
> goes.  Tax law is an excellent example.  There may be “a very strong
> reason” for having many tens of millions of people pay no income tax at
> all.  But I doubt that there’s a very strong reason for every single tax
> exemption out there.  There are legitimate reasons, to be sure, plausible
> reasons, but not “very strong” ones, and maybe not even “strong” ones.  
> And
> many might have seemed strong once, but now remain chiefly because of
> legislative inertia.  Does the conclusion that there are not-very-strong
> reasons for some secular exemptions mean that there has to be a religious
> exemption?
>
>
>
>Likewise, consider the Copyright Act, which contains a
> prohibition on various uses of a copyrighted work in sec. 106, and then
> about 15 sections starting with sec. 107 setting forth exemptions; many of
> those sections have quite different subsections, so there are dozens of
> exceptions.  For some, there may be a very strong reason, but for others
> it’s the result of political deals for the benefit of often small groups,
> sometimes decades or even a century ago.  Does it follow that anyone who
> has a religious objection to copyright law is entitled under RFRA to an
> exemption?
>
>
>
>Eugene
>
>
>
> Mark Scarberry writes:
>
>
>
> Jim's analysis is very helpful.
>
>
>
> Now to disagree with him and others on one point:
>
>
>
> On the relevance of gross underinclusion for the compelling interest
> question, I'd think it would matter whether there is a strong reason for
> the underinclusiveness. If not, then it would call into question the 
> govt's
> own view of the importance of the interest.
>
>
>
> With regard to lots of pe

RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Christopher Lund]

I think Marty has it exactly right here.  And I find it interesting how the 
Court sees RFRA largely as giving it greater leeway in deciding what counts 
as underinclusion. It’s not unlimited leeway, of course, for the reasons 
that Eugene gives.  But if the issue was Free Exercise alone, I don’t think 
the exception for peyote would have mattered for hoasca (O Centro), or the 
exception for religious non-profits would count for for-profits (Hobby 
Lobby), or 40+ states making exceptions for beards would count for Muslims 
in Arkansas (the next case, Holt v. Hobbs).  Those won’t count as exceptions 
for Free Exercise purposes, but they do count for RFRA purposes—or RLUIPA 
purposes, as in the last example.



Continuing in this vein, it surprises me how RFRA analysis almost always 
proceeds the same way that Free Exercise Clause analysis proceeds: The 
challengers must find exceptions somewhere; what RFRA enables is a wider 
field of vision in deciding what counts as an “exception.”  And In this 
sense, Hobby Lobby is a win for the government here.  Hobby Lobby really 
wanted a decision that said that exemptions didn’t matter and that religious 
liberty simply trumped women’s access to contraception.  That is very far 
from the Court’s actual reasoning.



Best,

Chris

___

Christopher C. Lund

Associate Professor of Law

Wayne State University Law School

471 West Palmer St.

Detroit, MI  48202

l...@wayne.edu

(313) 577-4046 (phone)

(313) 577-9016 (fax)

Website—http://law.wayne.edu/profile/christopher.lund/

Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402



On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman  
wrote:

I don't think the HL Court does move away from the O Centro analysis on 
underinclusiveness.  It treats the HHS "secondary accommodation" just as the 
O Centro court treated the marijuana exception--as a case in which the 
government could not explain why the reasons for creating that exception 
would not apply with full force to the requested exemption.  The line the 
government had drawn, in other words, was arbitrary as far as the Court was 
concerned.



On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:

Eugene's arguments here are very strong.  Exceptions to federal laws are 
frequent, and sometimes based on weak policy reasons.



But then what do we make of the unanimous decision in O Centro, in which the 
Court characterizes the peyote exception for members of Native American 
tribes as doing "appreciable damage" to the government's interest in 
limiting access to controlled substances, and therefore undermining the 
argument against a RFRA exception from the Controlled Substances Act for 
hoasca tea?  In the lower federal courts,  this move from O Centro was 
repeatedly cited in support of a conclusion that exceptions to the 
contraceptive mandate (primarily the grandfathering of pre-ACA plans) 
undermined the weight of the government's interest in denying a RFRA 
exception.  What happened to that argument in Hobby Lobby?  Was it just a 
makeweight, poorly reasoned argument to begin with?  Or is there a 
difference between the O Centro context and the Hobby Lobby context that 
explains the move away from O Centro's treatment of underinclusion?



On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene  wrote:

   I appreciate Mark’s argument, but I wonder how far it goes. 
Tax law is an excellent example.  There may be “a very strong reason” for 
having many tens of millions of people pay no income tax at all.  But I 
doubt that there’s a very strong reason for every single tax exemption out 
there.  There are legitimate reasons, to be sure, plausible reasons, but not 
“very strong” ones, and maybe not even “strong” ones.  And many might have 
seemed strong once, but now remain chiefly because of legislative inertia. 
Does the conclusion that there are not-very-strong reasons for some secular 
exemptions mean that there has to be a religious exemption?



   Likewise, consider the Copyright Act, which contains a 
prohibition on various uses of a copyrighted work in sec. 106, and then 
about 15 sections starting with sec. 107 setting forth exemptions; many of 
those sections have quite different subsections, so there are dozens of 
exceptions.  For some, there may be a very strong reason, but for others it’s 
the result of political deals for the benefit of often small groups, 
sometimes decades or even a century ago.  Does it follow that anyone who has 
a religious objection to copyright law is entitled under RFRA to an 
exemption?



   Eugene



Mark Scarberry writes:



Jim's analysis is very helpful.



Now to disagree with him and others on one point:



On the relevance of gross underinclusion for the compelling interest 
question, I'd think it would matter whether there is a strong reason for the 
underinclusiveness. If not, then it would call into question the govt's own 
view of the importance of the in

RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Scarberry, Mark]

Happy Independence Day to everyone!

The posts are coming fast and furious, so I’m a little behind in this response. 
(I haven’t yet read Marty’s blogpost explanation of the Wheaton order, and 
several more list posts came in just as I was finishing this post.)

Responding to Eugene’s cogent objections in an earlier email, and extending 
Marty’s analysis from an earlier email a little:

I am not arguing that each exception must be justified by a compelling 
interest; a strong interest could be enough. There appears to be no interest, 
or at most a weak one, for an exception that simply undermines the 
effectiveness of the law in advancing the allegedly compelling interest. Again, 
tax laws have multiple purposes; they are not just designed to raise revenue. 
By contrast, the contraceptive mandate (or, on one view, not mine, the 
“contraceptive/abortifacient” mandate) has one purpose. Some of the 
contraceptive mandate exceptions, at least the grandfathering of plans, seem to 
serve no purpose other than perhaps to make resistance to the law a little less 
intense, with the grandfathering having a rolling effect as the mandate and 
other ACA requirements kick in over time, so that fewer people have a basis for 
objecting that “if you want your plan, you can keep it” turned out not to be 
the case. An exception grounded on that kind of reason easily could be seen, as 
Marty may have suggested the Court saw it, to be arbitrary.

Perhaps also the least restrictive means and compelling interest issues blend a 
little here. There is a compelling interest in having a tax system that works; 
too many people would assert reasons that are pretextual if allowed to avoid 
paying taxes for religious reasons, and the system would be unadministrable. 
Here there is, on the govt’s view of the economics, little reason for 
pretextual claims; if in fact including the coverage reduces costs paid by 
insurance companies, then premiums will not be lower for employers who seek the 
accommodation. That view may or may not be correct, but it is the govt’s (at 
least the executive branch’s) view.

I will admit that to some degree I am influenced by the apparent insensitivity 
of the administration to religious liberty concerns. Note the 9-0 rejection of 
the administration’s opposition to the ministerial exception, and the 
completely and unreasonably limited scope of the original contraceptive mandate 
“accommodation.”

Note also the inexplicable insistence that a particular form be used to signify 
a religious objection (and the way that the form was drafted in the first 
place). The Court, in its Wheaton College order (and Little Sister order), 
seems to show an understanding of that issue. Even Justice Sotomayor’s 
overwrought dissent admits that the back of the form “reminds third-party 
administrators that receipt of the form constitutes notice that they must 
comply with their regulatory obligations.” If I’m asked to give someone notice 
that they must do something, I’m being asked to communicate something akin to 
an order that they do it, and I’m much more complicit with their actions than I 
would be simply by giving HHS a notice of my objection. There seems to be very 
little reason to require such a reminder and particularly to require that it be 
notice that the administrator “must comply.” There is also a compelled speech 
issue; the complainants may think the contraceptive regulations are so unjust 
that they are not binding under natural law or other principles, and may 
disagree with the notion that the administrator “must comply.” Justice 
Sotomayor does not, as far as I’ve seen on a quick reading of her dissent, 
explain why it is so important that this form be used with its particular 
language.

Mark

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



From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Friday, July 04, 2014 10:35 AM
To: Law & Religion issues for Law Academics
Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

I don't think the HL Court does move away from the O Centro analysis on 
underinclusiveness.  It treats the HHS "secondary accommodation" just as the O 
Centro court treated the marijuana exception--as a case in which the government 
could not explain why the reasons for creating that exception would not apply 
with full force to the requested exemption.  The line the government had drawn, 
in other words, was arbitrary as far as the Court was concerned.

On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
Eugene's arguments here are very strong.  Exceptions to federal laws are 
frequent, and sometimes based on weak policy reasons.

But then what do we make of the unanimous decision in O Centro, in which the 
Court characterizes the peyote exception for members of Native American tribes 
as doing "apprec

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Marty Lederman]

Oh, if you're referring to the grandfathering discussion, I'd agree . . .
except that it's rejected by a majority of the Court.


On Fri, Jul 4, 2014 at 1:48 PM, Ira Lupu  wrote:

> But why should the Court have cared about the reasons for the
> accommodation of non-profits, if underinclusion (independent of that
> accommodation) did "appreciable damage" to government's interest and
> therefore rendered it uncompelling?  The accommodation never gets into the
> picture if underinclusion is fatal at the compelling interest step.  So
> something has changed analytically.  Just AMK being inconsistent and
> holding out?  Or are there reasons to say O Centro was right on this point,
> and Hobby Lobby right not to follow it?
>
>
> On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman 
> wrote:
>
>> I don't think the HL Court does move away from the O Centro analysis on
>> underinclusiveness.  It treats the HHS "secondary accommodation" just as
>> the O Centro court treated the marijuana exception--as a case in which the
>> government could not explain why the reasons for creating that exception
>> would not apply with full force to the requested exemption.  The line the
>> government had drawn, in other words, was arbitrary as far as the Court was
>> concerned.
>>
>>
>> On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:
>>
>>> Eugene's arguments here are very strong.  Exceptions to federal laws are
>>> frequent, and sometimes based on weak policy reasons.
>>>
>>> But then what do we make of the unanimous decision in O Centro, in which
>>> the Court characterizes the peyote exception for members of Native American
>>> tribes as doing "appreciable damage" to the government's interest in
>>> limiting access to controlled substances, and therefore undermining the
>>> argument against a RFRA exception from the Controlled Substances Act for
>>> hoasca tea?  In the lower federal courts,  this move from O Centro was
>>> repeatedly cited in support of a conclusion that exceptions to the
>>> contraceptive mandate (primarily the grandfathering of pre-ACA plans)
>>> undermined the weight of the government's interest in denying a RFRA
>>> exception.  What happened to that argument in Hobby Lobby?  Was it just a
>>> makeweight, poorly reasoned argument to begin with?  Or is there a
>>> difference between the O Centro context and the Hobby Lobby context that
>>> explains the move away from O Centro's treatment of underinclusion?
>>>
>>>
>>> On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene 
>>> wrote:
>>>
I appreciate Mark’s argument, but I wonder how far it
 goes.  Tax law is an excellent example.  There may be “a very strong
 reason” for having many tens of millions of people pay no income tax at
 all.  But I doubt that there’s a very strong reason for every single tax
 exemption out there.  There are legitimate reasons, to be sure, plausible
 reasons, but not “very strong” ones, and maybe not even “strong” ones.  And
 many might have seemed strong once, but now remain chiefly because of
 legislative inertia.  Does the conclusion that there are not-very-strong
 reasons for some secular exemptions mean that there has to be a religious
 exemption?



Likewise, consider the Copyright Act, which contains a
 prohibition on various uses of a copyrighted work in sec. 106, and then
 about 15 sections starting with sec. 107 setting forth exemptions; many of
 those sections have quite different subsections, so there are dozens of
 exceptions.  For some, there may be a very strong reason, but for others
 it’s the result of political deals for the benefit of often small groups,
 sometimes decades or even a century ago.  Does it follow that anyone who
 has a religious objection to copyright law is entitled under RFRA to an
 exemption?



Eugene



 Mark Scarberry writes:



 Jim's analysis is very helpful.



 Now to disagree with him and others on one point:



 On the relevance of gross underinclusion for the compelling interest
 question, I'd think it would matter whether there is a strong reason for
 the underinclusiveness. If not, then it would call into question the govt's
 own view of the importance of the interest.



 With regard to lots of people not paying income tax, there is a very
 strong reason for tailoring a progressive income tax so that people with
 little income pay little or no income tax. Also, the purpose of a
 progressive tax system is not just to raise money, but to do so in a way
 that meets social goals directly related to the progressivity. There
 doesn't seem to be any similar reason, for example, that justifies the
 grandfathering of plans under the ACA.

 ___
 To post, send message to Religionlaw@lists

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Ira Lupu]

But why should the Court have cared about the reasons for the accommodation
of non-profits, if underinclusion (independent of that accommodation) did
"appreciable damage" to government's interest and therefore rendered it
uncompelling?  The accommodation never gets into the picture if
underinclusion is fatal at the compelling interest step.  So something has
changed analytically.  Just AMK being inconsistent and holding out?  Or are
there reasons to say O Centro was right on this point, and Hobby Lobby
right not to follow it?


On Fri, Jul 4, 2014 at 1:34 PM, Marty Lederman 
wrote:

> I don't think the HL Court does move away from the O Centro analysis on
> underinclusiveness.  It treats the HHS "secondary accommodation" just as
> the O Centro court treated the marijuana exception--as a case in which the
> government could not explain why the reasons for creating that exception
> would not apply with full force to the requested exemption.  The line the
> government had drawn, in other words, was arbitrary as far as the Court was
> concerned.
>
>
> On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:
>
>> Eugene's arguments here are very strong.  Exceptions to federal laws are
>> frequent, and sometimes based on weak policy reasons.
>>
>> But then what do we make of the unanimous decision in O Centro, in which
>> the Court characterizes the peyote exception for members of Native American
>> tribes as doing "appreciable damage" to the government's interest in
>> limiting access to controlled substances, and therefore undermining the
>> argument against a RFRA exception from the Controlled Substances Act for
>> hoasca tea?  In the lower federal courts,  this move from O Centro was
>> repeatedly cited in support of a conclusion that exceptions to the
>> contraceptive mandate (primarily the grandfathering of pre-ACA plans)
>> undermined the weight of the government's interest in denying a RFRA
>> exception.  What happened to that argument in Hobby Lobby?  Was it just a
>> makeweight, poorly reasoned argument to begin with?  Or is there a
>> difference between the O Centro context and the Hobby Lobby context that
>> explains the move away from O Centro's treatment of underinclusion?
>>
>>
>> On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene 
>> wrote:
>>
>>>I appreciate Mark’s argument, but I wonder how far it
>>> goes.  Tax law is an excellent example.  There may be “a very strong
>>> reason” for having many tens of millions of people pay no income tax at
>>> all.  But I doubt that there’s a very strong reason for every single tax
>>> exemption out there.  There are legitimate reasons, to be sure, plausible
>>> reasons, but not “very strong” ones, and maybe not even “strong” ones.  And
>>> many might have seemed strong once, but now remain chiefly because of
>>> legislative inertia.  Does the conclusion that there are not-very-strong
>>> reasons for some secular exemptions mean that there has to be a religious
>>> exemption?
>>>
>>>
>>>
>>>Likewise, consider the Copyright Act, which contains a
>>> prohibition on various uses of a copyrighted work in sec. 106, and then
>>> about 15 sections starting with sec. 107 setting forth exemptions; many of
>>> those sections have quite different subsections, so there are dozens of
>>> exceptions.  For some, there may be a very strong reason, but for others
>>> it’s the result of political deals for the benefit of often small groups,
>>> sometimes decades or even a century ago.  Does it follow that anyone who
>>> has a religious objection to copyright law is entitled under RFRA to an
>>> exemption?
>>>
>>>
>>>
>>>Eugene
>>>
>>>
>>>
>>> Mark Scarberry writes:
>>>
>>>
>>>
>>> Jim's analysis is very helpful.
>>>
>>>
>>>
>>> Now to disagree with him and others on one point:
>>>
>>>
>>>
>>> On the relevance of gross underinclusion for the compelling interest
>>> question, I'd think it would matter whether there is a strong reason for
>>> the underinclusiveness. If not, then it would call into question the govt's
>>> own view of the importance of the interest.
>>>
>>>
>>>
>>> With regard to lots of people not paying income tax, there is a very
>>> strong reason for tailoring a progressive income tax so that people with
>>> little income pay little or no income tax. Also, the purpose of a
>>> progressive tax system is not just to raise money, but to do so in a way
>>> that meets social goals directly related to the progressivity. There
>>> doesn't seem to be any similar reason, for example, that justifies the
>>> grandfathering of plans under the ACA.
>>>
>>> ___
>>> 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

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Marty Lederman]

I don't think the HL Court does move away from the O Centro analysis on
underinclusiveness.  It treats the HHS "secondary accommodation" just as
the O Centro court treated the marijuana exception--as a case in which the
government could not explain why the reasons for creating that exception
would not apply with full force to the requested exemption.  The line the
government had drawn, in other words, was arbitrary as far as the Court was
concerned.


On Fri, Jul 4, 2014 at 1:25 PM, Ira Lupu  wrote:

> Eugene's arguments here are very strong.  Exceptions to federal laws are
> frequent, and sometimes based on weak policy reasons.
>
> But then what do we make of the unanimous decision in O Centro, in which
> the Court characterizes the peyote exception for members of Native American
> tribes as doing "appreciable damage" to the government's interest in
> limiting access to controlled substances, and therefore undermining the
> argument against a RFRA exception from the Controlled Substances Act for
> hoasca tea?  In the lower federal courts,  this move from O Centro was
> repeatedly cited in support of a conclusion that exceptions to the
> contraceptive mandate (primarily the grandfathering of pre-ACA plans)
> undermined the weight of the government's interest in denying a RFRA
> exception.  What happened to that argument in Hobby Lobby?  Was it just a
> makeweight, poorly reasoned argument to begin with?  Or is there a
> difference between the O Centro context and the Hobby Lobby context that
> explains the move away from O Centro's treatment of underinclusion?
>
>
> On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene 
> wrote:
>
>>I appreciate Mark’s argument, but I wonder how far it
>> goes.  Tax law is an excellent example.  There may be “a very strong
>> reason” for having many tens of millions of people pay no income tax at
>> all.  But I doubt that there’s a very strong reason for every single tax
>> exemption out there.  There are legitimate reasons, to be sure, plausible
>> reasons, but not “very strong” ones, and maybe not even “strong” ones.  And
>> many might have seemed strong once, but now remain chiefly because of
>> legislative inertia.  Does the conclusion that there are not-very-strong
>> reasons for some secular exemptions mean that there has to be a religious
>> exemption?
>>
>>
>>
>>Likewise, consider the Copyright Act, which contains a
>> prohibition on various uses of a copyrighted work in sec. 106, and then
>> about 15 sections starting with sec. 107 setting forth exemptions; many of
>> those sections have quite different subsections, so there are dozens of
>> exceptions.  For some, there may be a very strong reason, but for others
>> it’s the result of political deals for the benefit of often small groups,
>> sometimes decades or even a century ago.  Does it follow that anyone who
>> has a religious objection to copyright law is entitled under RFRA to an
>> exemption?
>>
>>
>>
>>Eugene
>>
>>
>>
>> Mark Scarberry writes:
>>
>>
>>
>> Jim's analysis is very helpful.
>>
>>
>>
>> Now to disagree with him and others on one point:
>>
>>
>>
>> On the relevance of gross underinclusion for the compelling interest
>> question, I'd think it would matter whether there is a strong reason for
>> the underinclusiveness. If not, then it would call into question the govt's
>> own view of the importance of the interest.
>>
>>
>>
>> With regard to lots of people not paying income tax, there is a very
>> strong reason for tailoring a progressive income tax so that people with
>> little income pay little or no income tax. Also, the purpose of a
>> progressive tax system is not just to raise money, but to do so in a way
>> that meets social goals directly related to the progressivity. There
>> doesn't seem to be any similar reason, for example, that justifies the
>> grandfathering of plans under the ACA.
>>
>> ___
>> 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" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
> 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 

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Ira Lupu]

Eugene's arguments here are very strong.  Exceptions to federal laws are
frequent, and sometimes based on weak policy reasons.

But then what do we make of the unanimous decision in O Centro, in which
the Court characterizes the peyote exception for members of Native American
tribes as doing "appreciable damage" to the government's interest in
limiting access to controlled substances, and therefore undermining the
argument against a RFRA exception from the Controlled Substances Act for
hoasca tea?  In the lower federal courts,  this move from O Centro was
repeatedly cited in support of a conclusion that exceptions to the
contraceptive mandate (primarily the grandfathering of pre-ACA plans)
undermined the weight of the government's interest in denying a RFRA
exception.  What happened to that argument in Hobby Lobby?  Was it just a
makeweight, poorly reasoned argument to begin with?  Or is there a
difference between the O Centro context and the Hobby Lobby context that
explains the move away from O Centro's treatment of underinclusion?


On Fri, Jul 4, 2014 at 1:05 PM, Volokh, Eugene  wrote:

>I appreciate Mark’s argument, but I wonder how far it
> goes.  Tax law is an excellent example.  There may be “a very strong
> reason” for having many tens of millions of people pay no income tax at
> all.  But I doubt that there’s a very strong reason for every single tax
> exemption out there.  There are legitimate reasons, to be sure, plausible
> reasons, but not “very strong” ones, and maybe not even “strong” ones.  And
> many might have seemed strong once, but now remain chiefly because of
> legislative inertia.  Does the conclusion that there are not-very-strong
> reasons for some secular exemptions mean that there has to be a religious
> exemption?
>
>
>
>Likewise, consider the Copyright Act, which contains a
> prohibition on various uses of a copyrighted work in sec. 106, and then
> about 15 sections starting with sec. 107 setting forth exemptions; many of
> those sections have quite different subsections, so there are dozens of
> exceptions.  For some, there may be a very strong reason, but for others
> it’s the result of political deals for the benefit of often small groups,
> sometimes decades or even a century ago.  Does it follow that anyone who
> has a religious objection to copyright law is entitled under RFRA to an
> exemption?
>
>
>
>Eugene
>
>
>
> Mark Scarberry writes:
>
>
>
> Jim's analysis is very helpful.
>
>
>
> Now to disagree with him and others on one point:
>
>
>
> On the relevance of gross underinclusion for the compelling interest
> question, I'd think it would matter whether there is a strong reason for
> the underinclusiveness. If not, then it would call into question the govt's
> own view of the importance of the interest.
>
>
>
> With regard to lots of people not paying income tax, there is a very
> strong reason for tailoring a progressive income tax so that people with
> little income pay little or no income tax. Also, the purpose of a
> progressive tax system is not just to raise money, but to do so in a way
> that meets social goals directly related to the progressivity. There
> doesn't seem to be any similar reason, for example, that justifies the
> grandfathering of plans under the ACA.
>
> ___
> 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" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.)
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
___
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RE: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Volokh, Eugene]

   I appreciate Mark’s argument, but I wonder how far it goes.  Tax 
law is an excellent example.  There may be “a very strong reason” for having 
many tens of millions of people pay no income tax at all.  But I doubt that 
there’s a very strong reason for every single tax exemption out there.  There 
are legitimate reasons, to be sure, plausible reasons, but not “very strong” 
ones, and maybe not even “strong” ones.  And many might have seemed strong 
once, but now remain chiefly because of legislative inertia.  Does the 
conclusion that there are not-very-strong reasons for some secular exemptions 
mean that there has to be a religious exemption?

   Likewise, consider the Copyright Act, which contains a 
prohibition on various uses of a copyrighted work in sec. 106, and then about 
15 sections starting with sec. 107 setting forth exemptions; many of those 
sections have quite different subsections, so there are dozens of exceptions.  
For some, there may be a very strong reason, but for others it’s the result of 
political deals for the benefit of often small groups, sometimes decades or 
even a century ago.  Does it follow that anyone who has a religious objection 
to copyright law is entitled under RFRA to an exemption?

   Eugene

Mark Scarberry writes:

Jim's analysis is very helpful.

Now to disagree with him and others on one point:

On the relevance of gross underinclusion for the compelling interest question, 
I'd think it would matter whether there is a strong reason for the 
underinclusiveness. If not, then it would call into question the govt's own 
view of the importance of the interest.

With regard to lots of people not paying income tax, there is a very strong 
reason for tailoring a progressive income tax so that people with little income 
pay little or no income tax. Also, the purpose of a progressive tax system is 
not just to raise money, but to do so in a way that meets social goals directly 
related to the progressivity. There doesn't seem to be any similar reason, for 
example, that justifies the grandfathering of plans under the ACA.
___
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Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Rick Duncan]

Mark is absolutely correct.

When I teach free exercise, I always tell my students that underinclusion is 
relevant for two purposes:

1. to establish that the law is not generally applicable.

2. to demonstrate that the purpose of the law is not compellingly important. If 
a law's goal is truly compellingly important, one of only a few interests of 
the highest order as the Court likes to put it, surely the legislature would 
not exempt so many from its reach.

In the case of the contraceptive/abortafacient mandate, not only are there 
millions of employees uncovered (who do not receive the mandate's products 
because their employers are exempted from Obamacare), but it is not clear that 
Congress would ever pass the mandate as it exists.

Would Obamacare have passed in 2010 if the scope of the contraceptive mandate 
were clearly expressed in the Bill itself? Or could it only have been 
"legislated" by HHS? Would it pass Congress today? 


The problem with the compelling interest test is it is ultimately meaningless. 
No one knows which legislative interests are compellingly important, which 
important but not compelling, and which merely legitimate. 


Where is the scale to weigh a law's interests? Does the Court have one, 
properly-calibrated scale, or nine subjectively-calibrated scales?


It is always a bad example to use racial equality as a comparison to X, because 
racial equality is clearly the greatest achievement of the modern Court and 
modern civil rights legislation. 

But are employer-paid contraceptives/abortafacients of equal import to racial 
equality? Is a law requiring employers to provide contraceptives an interest of 
the highest order? If HHS requires surgical abortions to be covered would that 
be an interest of the highest order? More important than just about every other 
law?

Courts often skip this issue and assume that, say zoning interests (such as 
controlling traffic and parking congestion), are compelling interests, because 
there is almost always a less restrictive means of achieving any particular 
interest (speed limits, traffic lights, parking rules, etc). 


But if we say that there are literally thousands of government interests that 
are compelling, aren't we really saying that none of them are specially 
important?


Rick



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

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

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



 From: "Scarberry, Mark" 
To: Law & Religion issues for Law Academics  
Sent: Friday, July 4, 2014 1:14 AM
Subject: Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby   
Question"]
 


Jim's analysis is very helpful.

Now to disagree with him and others on one point:

On the relevance of gross underinclusion for the compelling interest question, 
I'd think it would matter whether there is a strong reason for the 
underinclusiveness. If not, then it would call into question the govt's own 
view of the importance of the interest. 

With regard to lots of people not paying income tax, there is a very strong 
reason for tailoring a progressive income tax so that people with little income 
pay little or no income tax. Also, the purpose of a progressive tax system is 
not just to raise money, but to do so in a way that meets social goals directly 
related to the progressivity. There doesn't seem to be any similar reason, for 
example, that justifies the grandfathering of plans under the ACA. 

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad



On Jul 3, 2014, at 6:46 PM, "James Oleske"  wrote:


Interestingly, the same underinclusion argument is playing out in two distinct 
ways in religious exemption litigation: (1) in RFRA cases, where the argument 
is made that underinclusion in a law indicates that it does not serve a 
compelling interest and (2) in constitutional free exercise cases, where the 
argument is made that underinclusion renders a law non-neutral and/or 
non-generally applicable, and thus subject to strict scrutiny.
>
>In the for-profit contraception cases, there was a possibility, albeit remote, 
>that the Court would address both of these underinclusion arguments (in 
>addition to the parties' RFRA claims, Conestoga Wood's free exercise claim was 
>before the Court and it explicitly made underinclusion argument #2 with 
>respect to that claim). The Court, of course, ended up resolving neither 
>underinclusion argument, although it did send some signals in dicta that it 
>was open to argument #1.
>
>I believe

Re: Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[Scarberry, Mark]

Jim's analysis is very helpful.

Now to disagree with him and others on one point:

On the relevance of gross underinclusion for the compelling interest question, 
I'd think it would matter whether there is a strong reason for the 
underinclusiveness. If not, then it would call into question the govt's own 
view of the importance of the interest.

With regard to lots of people not paying income tax, there is a very strong 
reason for tailoring a progressive income tax so that people with little income 
pay little or no income tax. Also, the purpose of a progressive tax system is 
not just to raise money, but to do so in a way that meets social goals directly 
related to the progressivity. There doesn't seem to be any similar reason, for 
example, that justifies the grandfathering of plans under the ACA.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On Jul 3, 2014, at 6:46 PM, "James Oleske" 
mailto:jole...@lclark.edu>> wrote:

Interestingly, the same underinclusion argument is playing out in two distinct 
ways in religious exemption litigation: (1) in RFRA cases, where the argument 
is made that underinclusion in a law indicates that it does not serve a 
compelling interest and (2) in constitutional free exercise cases, where the 
argument is made that underinclusion renders a law non-neutral and/or 
non-generally applicable, and thus subject to strict scrutiny.

In the for-profit contraception cases, there was a possibility, albeit remote, 
that the Court would address both of these underinclusion arguments (in 
addition to the parties' RFRA claims, Conestoga Wood's free exercise claim was 
before the Court and it explicitly made underinclusion argument #2 with respect 
to that claim). The Court, of course, ended up resolving neither underinclusion 
argument, although it did send some signals in dicta that it was open to 
argument #1.

I believe that the most prominent pending case raising argument #2 is Stormans 
v. Selecky, which was originally scheduled for oral argument before the Ninth 
Circuit last fall, but was held for the Supreme Court's decision in Hobby 
Lobby. Are folks aware of any other pending cases raising argument #2?

As for argument #1, presumably it will continue to play a prominent role in the 
many non-profit contraception cases still working their way through the 
pipeline. Like Alan and Eugene, I find the argument unpersuasive, but in light 
of the dicta in Hobby Lobby, I would expect advocates for the non-profits to 
press it vigorously.

- Jim

On Tue, Jul 1, 2014 at 9:29 PM, Alan Brownstein 
mailto:aebrownst...@ucdavis.edu>> wrote:

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

 Alan


From: Volokh, Eugene [vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>]
Sent: Tuesday, July 01, 2014 8:09 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

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

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

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

   Eugene

From: Rick Duncan
Sent: Tuesday, July 01, 2014 5:04 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

The Court assumed that there is a compelling interest in covering 
contraceptives, even though there are literally millions of women whose

Re: Hobby Lobby Question

[Levinson, Sanford V]

Just to clarify:  Brown I did nothing for Linda Brown, and then Brown II 
adopted "all deliberate speed."  I'm certainly glad that Brown was decided as 
it was, but we shouldn't overestimate the difference it made to the actual 
lives of most people in the first several years. I graduated from a segregated 
high school in North Carolina in 1958. And I'm ashamed to say that I graduated 
from a segregated Duke University in 1962.

Sandy

Sent from my iPhone

On Jul 2, 2014, at 12:25 PM, "Brian Landsberg" 
mailto:blandsb...@pacific.edu>> wrote:

I have long thought, as Sandy does, that Naim v. Naim was a disgrace.  It is 
hardly proof that Brown “did absolutely nothing,” though.  Even Gerald 
Rosenberg’s flawed analysis of Brown does not go that far.  Looking more 
closely at Naim, it seems somewhat less outrageous that the Court waited for 
better cases, which ultimately came in McClaughlin and Loving.  Naim was a 
Chinese citizen who had married a white woman in North Carolina.  She sued for 
divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s 
eligibility for U.S. citizenship.  Even if the Virginia law was held 
unconstitutional, the lower court could still have granted an annulment or 
divorce.  The husband’s lawyer did not argue that the racial classification was 
unreasonable, according to an article in 42 American Journal of Legal History, 
119.  Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably 
reflecting their fear that the post-Brown slogan “integration means 
intermarriage” would gain added credence and endanger compliance with Brown.  
None of this excuses the Court for ducking the issue, but perhaps it helps 
explain why the Court waited for a prosecution of an interracial couple before 
deciding the issue.  For a good overview, see Peggy Pascoe, What Comes 
Naturally: Miscegenation Law and the Making of Race in America.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 7:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

Art raises an interesting point.  For better and worse, Brown in 1954 did 
absolutely nothing, and Brown II settled for the (in)famous “all deliberate 
speed.”  It was the Civil Rights Movement, Lyndon Johnson, and Congress that 
fundamentally changed things, not the Supreme Court that in 1956 engaged in the 
disgraceful evasion of Naim v. Naim.  I’m not sure how much credit Roe should 
get for reforming American abortion law.  That’s the great question raised by 
Gerry Rosenberg’s book.  Same-sex marriage is quite unlike these, incidentally, 
in that the Court can, should it wish to, make it a possibility nation-wide 
simply by the “performative utterance” of declaring that such marriages can’t 
be barred by states.  There will, even in Oklahoma and North Dakota, be 
ministers willing to preside and civil servants who will feel obligated to sell 
the marriage licenses.  It’s far less complicated, in terms of changing the 
behavior of thousands upon thousands low-visibility officials, than school 
segregation.

But I also want to emphasize that the utter cynicism is to suggest, while 
maintaining an iniquitous status quo, that the answer lies in Congress.  The 
strongest argument for judicial intervention is indeed the argument of John 
Hart Ely that it is foolish to consign unpopular groups to legislative mercy.  
That was, incidentally, what was so offensive about Frankfurter in 1962 saying 
that the folks in Memphis should “sear the consciences” of the Tennessee 
legislators that never in a million years would have voluntarily given up their 
illegitimate power as a result of malapportionment.  “Power corrupts,” as John 
P. Roche once put it, “and the prospect of losing power corrupts absolutely.”  
So I don’t know how much we disagree after all.

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, June 30, 2014 8:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

With respect, I think Sandy's response ("I think that it's utter cynicism to 
suggest possibilities that are politically impossible. The life of the law 
should be experience and not arid logical possibility") is unacceptable.  It 
was politically impossible to get southern states to integrate their public 
schools in 1954.  Did that make it constitutionally unnecessary?  It was 
politically impossible to get many states to allow abortions in 1973.  But it 
happened.  It is politically impossible to get Oklahoma (or Congress) to agree 
to same-sex marriage.  Does that make it constitutionally unnecessary?  "The 
life of the law should be experi

Underinclusion Arguments Going Forward [Was "Hobby Lobby Question"]

[James Oleske]

Interestingly, the same underinclusion argument is playing out in two
distinct ways in religious exemption litigation: (1) in RFRA cases, where
the argument is made that underinclusion in a law indicates that it does
not serve a compelling interest and (2) in constitutional free exercise
cases, where the argument is made that underinclusion renders a law
non-neutral and/or non-generally applicable, and thus subject to strict
scrutiny.

In the for-profit contraception cases, there was a possibility, albeit
remote, that the Court would address both of these underinclusion arguments
(in addition to the parties' RFRA claims, Conestoga Wood's free exercise
claim was before the Court and it explicitly made underinclusion argument
#2 with respect to that claim). The Court, of course, ended up resolving
neither underinclusion argument, although it did send some signals in dicta
that it was open to argument #1.

I believe that the most prominent pending case raising argument #2 is *Stormans
v. Selecky*, which was originally scheduled for oral argument before the
Ninth Circuit last fall, but was held for the Supreme Court's decision
in *Hobby
Lobby*. Are folks aware of any other pending cases raising argument #2?

As for argument #1, presumably it will continue to play a prominent role in
the many non-profit contraception cases still working their way through the
pipeline. Like Alan and Eugene, I find the argument unpersuasive, but in
light of the dicta in *Hobby Lobby*, I would expect advocates for the
non-profits to press it vigorously.

- Jim

On Tue, Jul 1, 2014 at 9:29 PM, Alan Brownstein 
wrote:

>  Eugene read my mind and wrote exactly what I was going to write. Maybe
> gross underinclusion isn't entirely irrelevant, but standing alone it has
> little bearing on whether the state's interest is compelling or not for
> religious liberty exemption purposes.
>
>  Alan
>  --
> *From:* Volokh, Eugene [vol...@law.ucla.edu]
> *Sent:* Tuesday, July 01, 2014 8:09 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Hobby Lobby Question
>
>  The Court also said that there’s a compelling government
> interest in preventing race discrimination in employment, even though there
> are literally millions of people who are exempted from Title VII (since
> they work for employers who have fewer than 15 employees).  Is such gross
> underinclusion relevant to the issue of compelling interest?  If so, does
> it keep the interest from being compelling, and entitle religiously
> objecting employers with more than 15 employees to an exemption from Title
> VII?
>
>
>
>The Court has also said that there’s a compelling
> government interest in collecting federal income taxes, even though there
> are literally millions of people who pay no net federal income tax.  Is
> such gross underinclusion relevant to the issue of compelling interest, to
> the point that people who object to paying certain kinds of taxes are
> entitled to an exemption from federal text law?
>
>
>
>The Court has also rejected a claim of religious exemption
> from the draft (for people who oppose only unjust wars, and therefore
> aren’t entitled to a statutory exemption), and has been understood as
> saying that there’s a compelling government interest in raising armies,
> even though there are literally tens of millions of people who aren’t
> eligible for the draft.  Is such gross underinclusion relevant to the issue
> of compelling interest, to the point that people who object to unjust wars
> really are entitled to a draft exemption?
>
>
>
>    Eugene
>
>
>
> *From:* Rick Duncan
> *Sent:* Tuesday, July 01, 2014 5:04 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Hobby Lobby Question
>
>
>
> The Court assumed that there is a compelling interest in covering
> contraceptives, even though there are literally millions of women whose
> policies are exempted from the mandate under the ACA. Do we all agree that
> such gross underinclusion is irrelevant to the issue of compelling interest?
>
>
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Re: Hobby Lobby Question

[Vance R. Koven]

On Wed, Jul 2, 2014 at 1:42 PM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:

> a conclusion that a person's religious beliefs are not sincere could
> itself raise constitutional issues


Seriously? I don't see how that can be right--if a jury can't decide on
fundamental issues of credibility and evidence, then we've handed out the
ultimate heckler's veto, and there's not much point to even having a
litigation.

On what basis would it raise a constitutional issue, apart from whether the
judge should have granted JNOV?

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

[Scarberry, Mark]

Yes, it is a statutory issue, and perhaps this is best seen as analogous. 
Congress did import to some degree constitutional analysis, which could 
strengthen the analogy. Also, a conclusion that a person's religious beliefs 
are not sincere could itself raise constitutional issues (though I don't recall 
whether the draft exemption cases treated the determination of sincerity as 
raising First Am issues).

I don't believe that questions of constitutional fact are removed from jury 
consideration; instead, where such an analysis is used, the courts simply are 
not deferential to juries' conclusions of fact that would restrict 
constitutional rights.

Mark

Sent from my iPad

On Jul 2, 2014, at 6:34 AM, "Vance R. Koven" 
mailto:vrko...@gmail.com>> wrote:

I assume that the use of quotes around "constitutional fact" is meant to 
highlight that the phrase is used as an analogy in this situation, which is 
governed by a statute and not the Constitution. But partly for that reason, I 
think the danger of a jury's refusal to follow a proper instruction on the 
irrelevance of a belief's rationality to its sincerity is not likely to be very 
significant (since firstly, juries don't usually ignore a judge's instructions, 
and secondly, a court can also enter a JNOV if the jury has obviously gotten it 
wrong). If the determination of sincerity is left to courts as some kind of 
"über-fact" then I think we really do tread dangerous ground, since that 
determination will too often be made on hidden policy agendas, for 
administrative convenience, or other factors that we really don't want to 
impinge on religious liberty, to say nothing of investing the courts in 
determining issues of religion that the Constitution forbids them to do.


On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
Maybe this is a "constitutional fact," like NY Times actual malice. We need to 
be careful that a trier of fact does not conclude that a party isn't sincere 
just because the trier of fact thinks the belief is so obviously wrong that a 
reasonable person couldn't believe it.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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

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

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


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

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

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

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

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

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

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

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



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






--
Vance R. Koven
Boston, MA USA
vrko...@world.std.com
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Religionlaw@lists.ucla.edu
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RE: Hobby Lobby Question

[Brian Landsberg]

I have long thought, as Sandy does, that Naim v. Naim was a disgrace.  It is 
hardly proof that Brown “did absolutely nothing,” though.  Even Gerald 
Rosenberg’s flawed analysis of Brown does not go that far.  Looking more 
closely at Naim, it seems somewhat less outrageous that the Court waited for 
better cases, which ultimately came in McClaughlin and Loving.  Naim was a 
Chinese citizen who had married a white woman in North Carolina.  She sued for 
divorce on grounds of adultery, or for an annulment, throwing into doubt Naim’s 
eligibility for U.S. citizenship.  Even if the Virginia law was held 
unconstitutional, the lower court could still have granted an annulment or 
divorce.  The husband’s lawyer did not argue that the racial classification was 
unreasonable, according to an article in 42 American Journal of Legal History, 
119.  Thurgood Marshall and Roy Wilkins refused to file amicus briefs, probably 
reflecting their fear that the post-Brown slogan “integration means 
intermarriage” would gain added credence and endanger compliance with Brown.  
None of this excuses the Court for ducking the issue, but perhaps it helps 
explain why the Court waited for a prosecution of an interracial couple before 
deciding the issue.  For a good overview, see Peggy Pascoe, What Comes 
Naturally: Miscegenation Law and the Making of Race in America.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 7:20 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

Art raises an interesting point.  For better and worse, Brown in 1954 did 
absolutely nothing, and Brown II settled for the (in)famous “all deliberate 
speed.”  It was the Civil Rights Movement, Lyndon Johnson, and Congress that 
fundamentally changed things, not the Supreme Court that in 1956 engaged in the 
disgraceful evasion of Naim v. Naim.  I’m not sure how much credit Roe should 
get for reforming American abortion law.  That’s the great question raised by 
Gerry Rosenberg’s book.  Same-sex marriage is quite unlike these, incidentally, 
in that the Court can, should it wish to, make it a possibility nation-wide 
simply by the “performative utterance” of declaring that such marriages can’t 
be barred by states.  There will, even in Oklahoma and North Dakota, be 
ministers willing to preside and civil servants who will feel obligated to sell 
the marriage licenses.  It’s far less complicated, in terms of changing the 
behavior of thousands upon thousands low-visibility officials, than school 
segregation.

But I also want to emphasize that the utter cynicism is to suggest, while 
maintaining an iniquitous status quo, that the answer lies in Congress.  The 
strongest argument for judicial intervention is indeed the argument of John 
Hart Ely that it is foolish to consign unpopular groups to legislative mercy.  
That was, incidentally, what was so offensive about Frankfurter in 1962 saying 
that the folks in Memphis should “sear the consciences” of the Tennessee 
legislators that never in a million years would have voluntarily given up their 
illegitimate power as a result of malapportionment.  “Power corrupts,” as John 
P. Roche once put it, “and the prospect of losing power corrupts absolutely.”  
So I don’t know how much we disagree after all.

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, June 30, 2014 8:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

With respect, I think Sandy's response ("I think that it's utter cynicism to 
suggest possibilities that are politically impossible. The life of the law 
should be experience and not arid logical possibility") is unacceptable.  It 
was politically impossible to get southern states to integrate their public 
schools in 1954.  Did that make it constitutionally unnecessary?  It was 
politically impossible to get many states to allow abortions in 1973.  But it 
happened.  It is politically impossible to get Oklahoma (or Congress) to agree 
to same-sex marriage.  Does that make it constitutionally unnecessary?  "The 
life of the law should be experience," and experience teaches that the nation 
obeys the law.  At least mostly, and at least so far.  And Congress can amend 
RFRA if The People don't like it.

Art Spitzer

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

On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:
I think that it's utter cynicism to suggest possibilities that are politically 
impossible. The life of the law should be experience and not arid logical 
possibility.

Sandy

Sent from my iPhone

On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.ed

Re: Hobby Lobby Question

[Marty Lederman]

Thankfully, this issue is now beside the point, but just to repeat, the
premise is mistaken:  There are not literally millions of women whose
policies are exempted.  Almost all women in the United States are or soon
will be entitled to cost-free contraceptive coverage in their insurance
plan.


On Tue, Jul 1, 2014 at 8:04 PM, Rick Duncan 
wrote:

> The Court assumed that there is a compelling interest in covering
> contraceptives, even though there are literally millions of women whose
> policies are exempted from the mandate under the ACA. Do we all agree that
> such gross underinclusion is irrelevant to the issue of compelling
> interest?
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> My recent article, *Just Another Brick in the Wall: The Establishment
> Clause as a Heckler's Veto*, is available at SSRN
>
> "And against the constitution I have never raised a storm,It's the
> scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from
> the song, Thomas Muir of Huntershill)
>
>   --
>  *From:* "Scarberry, Mark" 
>
> *To:* Law & Religion issues for Law Academics 
>
> *Sent:* Monday, June 30, 2014 8:03 PM
>
> *Subject:* RE: Hobby Lobby Question
>
> With regard to Sandy’s comment that there isn’t a chance in hell of
> getting funding from Congress to cover these methods of contraception:
>
> Do we agree that a less restrictive means is available for purposes of
> RFRA and (where applicable) constitutional analysis, even if the government
> (including Congress) is for some reason unwilling to use it? The political
> difficulty (or impossibility) of getting agreement on implementing an
> approach does not make it unavailable; it just means that there is no
> consensus on using it. Do we agree on that point?
>
> On the question whether govt funding may be a less restrictive means:
>
> The majority opinion does suggest that the government could be required,
> if it seeks to advance its compelling interest, to incur a cost that is
> small compared to the cost of the entire program. A means of advancing that
> interest that requires the spending of money could be a less restrictive
> means – less restrictive of religious liberty – than a requirement that the
> individual or business incur the cost. See the discussion that begins at
> the top of page 41, and this excerpt from pp. 42-43:
>
> “The most straightforward way of doing this would be for the Government to
> assume the cost of providing the four contraceptives at issue to any women
> who are unable to obtain them under their health-insurance policies due to
> their employers’ religious objections. … It seems likely, however, that the
> cost of providing the forms of contraceptives at issue in these cases (if
> not all FDA-approved contraceptives) would be minor when compared with the
> overall cost of ACA. … If, as HHS tells us, providing all women with
> cost-free access to all FDA-approved methods of contraception is a
> Government interest of the highest order, it is hard to understand HHS’s
> argument that it cannot be required under RFRA to pay anything in order to
> achieve this important goal.
>  “We do not doubt that cost may be an important factor in the
> least-restrictive-means analysis, but both RFRA and its sister statute,
> RLUIPA, may in some circumstances require the Government to expend
> additional funds to accommodate citizens’ religious beliefs. Cf.
> §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur
> expenses in its own operations to avoid imposing a substantial burden on
> religious
> exercise.’). HHS’s view that RFRA can never require the Government to
> spend even a small amount reflects a judgment about the importance of
> religious liberty that was not shared by the Congress that enacted that
> law.”
>
> Mark
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V
> *Sent:* Monday, June 30, 2014 12:28 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Hobby Lobby Question
>
> This is a good question.  AS I read the opinion it tends to rely on the
> fact that the insurance providers will be required to provide the coverage
> “for free” (given that it will overall cost less to cover than would
> pregnancies), so that the government must allocate not a single new penny.
> If, on the other hand, a new appropriation, even of a penny, would be
> necessary, then we all know that there isn’t a chance in hell of that bein

Re: Hobby Lobby Question

[Vance R. Koven]

I assume that the use of quotes around "constitutional fact" is meant to
highlight that the phrase is used as an analogy in this situation, which is
governed by a statute and not the Constitution. But partly for that reason,
I think the danger of a jury's refusal to follow a proper instruction on
the irrelevance of a belief's rationality to its sincerity is not likely to
be very significant (since firstly, juries don't usually ignore a judge's
instructions, and secondly, a court can also enter a JNOV if the jury has
obviously gotten it wrong). If the determination of sincerity is left to
courts as some kind of "über-fact" then I think we really do tread
dangerous ground, since that determination will too often be made on hidden
policy agendas, for administrative convenience, or other factors that we
really don't want to impinge on religious liberty, to say nothing of
investing the courts in determining issues of religion that the
Constitution forbids them to do.


On Tue, Jul 1, 2014 at 12:11 PM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:

> Maybe this is a "constitutional fact," like NY Times actual malice. We
> need to be careful that a trier of fact does not conclude that a party
> isn't sincere just because the trier of fact thinks the belief is so
> obviously wrong that a reasonable person couldn't believe it.
>
> Mark
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> Sent from my iPad
>
> On Jul 1, 2014, at 8:30 AM, "Vance R. Koven"  wrote:
>
> I have (perhaps incorrectly) assumed that when the Court says *it* should
> not get involved in judging the sincerity of a religious belief, it is
> expressing the proper division of labor between a court and the finder of
> fact. It should be up to the jury (or the court wearing a fact-finder hat)
> to decide whether the belief is sincerely held or not. A trial court can
> easily enough instruct a jury to disregard whether they think the religious
> belief is kooky; but it's perfectly acceptable based on the credibility of
> the witnesses and direct and circumstantial evidence for a jury to
> ascertain whether the claimed religious belief is real or bogus.
>
> I have often suspected that doctrine in religious liberty cases has become
> quite twisted over time by courts' reluctance to let juries do what they're
> supposed to do.
>
>
> On Tue, Jul 1, 2014 at 2:04 AM, Arthur Spitzer 
> wrote:
>
>> I appreciate Steve's response, which I think demonstrates that he is
>> precisely rejecting the legitimacy (or perhaps the religiosity) of the
>> plaintiffs' beliefs.  The plaintiffs say that their religious beliefs
>> prohibit complicity with evil, and that signing a contract that makes
>> available certain chemicals or devices to others amounts to complicity with
>> evil, because of the use to which such chemicals or devices are most likely
>> to be put (terminating what plaintiffs believe is a human life).
>>
>> If a court should not accept that assertion "without inquiry," then what
>> inquiry is it supposed to make?
>>
>> Can a court evaluate and reject the religious belief that "complicity
>> with evil is sinful"?
>>
>> Can a court evaluate and reject the religious belief that "terminating a
>> human life is evil"?
>>
>> Can a court evaluate and reject the religious belief that "morning-after
>> pills terminate a human life"?
>>
>> Can a court evaluate and reject the religious belief that "providing the
>> means for a person to obtain a chemical or device whose principal purpose
>> is to terminate a human life, and that is likely to be used for that
>> purpose, counts as complicity in terminating a human life"?
>>
>> Is there some other inquiry the court should be making that I'm missing?
>>
>> Art Spitzer
>> PS - My questions should not be taken to imply that I necessarily agree
>> with the majority opinion (not that anyone cares), and they certainly do
>> not represent the views of my employer.
>>
>>
>>
>> *Warning*
>> *: this message is subject to monitoring by the NSA.*
>>
>>
>>
>>
>
> --
> Vance R. Koven
> Boston, MA USA
> vrko...@world.std.com
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
>
> ___
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>
> 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 r

RE: Hobby Lobby Question

[Alan Brownstein]

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



Alan


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

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

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

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

   Eugene

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

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

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

My recent article, Just Another Brick in the Wall: The Establishment Clause as 
a Heckler's Veto, is available at 
SSRN<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504>
"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)
___
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RE: Hobby Lobby Question

[Volokh, Eugene]

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

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

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

   Eugene

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

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

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

My recent article, Just Another Brick in the Wall: The Establishment Clause as 
a Heckler's Veto, is available at 
SSRN<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504>
"And against the constitution I have never raised a storm,It's the scoundrels 
who've corrupted it that I want to reform" --Dick Gaughan (from the song, 
Thomas Muir of Huntershill)
___
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Re: Hobby Lobby Question

[Levinson, Sanford V]

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

Sandy

Sent from my iPhone

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

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

Sent from Steve's iPhone


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

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

Art Spitzer


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



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

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

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


--
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://sdjlaw.org


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


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








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Please note that messages 

Re: Hobby Lobby Question

[Rick Duncan]

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

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

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

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



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


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

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

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

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

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

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

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

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





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




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


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

Re: Hobby Lobby Question

[Rick Duncan]

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

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

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

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



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


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


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

 
-- 
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Her

Re: Hobby Lobby Question

[Levinson, Sanford V]

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

Sandy

Sent from my iPhone

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

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

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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

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

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


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

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

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

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

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

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

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

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



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






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

[David Cruz]

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

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


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


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



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



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



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



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



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



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





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



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

RE: Hobby Lobby Question

[Daniel J. Greenwood]

 protect non-officeholders, we 
always limit the rights of the office -- and they always complain that 
carpetbaggers are interfering with the rights of the institution.



Protecting the corporation’s religious rights can only mean protecting the 
rights of its incumbent decisionmakers to use their power to impose their 
religious views on other participants.  This is substantively if not 
technically “establishment,” not “free exercise.”  If the goal were to protect 
the religious freedom of corporate participants other than the board of 
directors and those who vote for them, we’d have to restrict the corporation’s 
freedom of action, much as we do in civil rights law, labor law, contract law, 
consumer protection, environmental and safety law, human rights law, etc.


DG


From: Alan Brownstein [mailto:aebrownst...@ucdavis.edu]
Sent: Monday, June 30, 2014 5:08 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

I think the least restrictive means analysis maximizes the possibility of a 
win/win solution – at least it would if we did not have a dysfunctional 
political system.

I had a couple of questions and thoughts. First, I read Alito to say that 
corporations are a fiction, but we will treat them as persons in order to 
protect the rights of real persons – here the owners of the corporation. I 
think it would have been clearer and more accurate to say that the owners of 
closely held corporations are persons and they do not lose their rights as 
persons under RFRA by electing to do business through a corporate form. Is my 
reading correct and would the alternative reading be preferable or make a 
difference in later cases?

Second, I read both Alito and Kennedy to say that while government taking on 
the cost of providing benefits may be a least restrictive alternative, the cost 
to government of doing so is relevant to determining whether a government as 
provider plan qualifies as a least restrictive alternative.

Third, the Court never addresses the question of whether RFRA requires the 
government to grant an accommodation to religious non-profits. It doesn’t have 
to because the accommodation was already in place. But does the Court’s 
emphasis on the existing accommodation for religious non-profits as the 
foundation for its least restrictive means analysis create a disincentive for 
granting such accommodations in the future in later cases. Under the Court’s 
analysis, if you grant an accommodation to religious non-profits, you have to 
grant a similar accommodation to for-profit businesses and closely held 
corporations. But what if you don’t grant an accommodation to the religious 
non-profits? What if the government argued in such a case that thousands of 
women would lose benefits if the accommodation was granted and the plaintiffs 
argued that the government should take on this cost or assign it to some third 
party – like insurance companies (but there was no concession or reason to 
think that the assignment of coverage would be cost free.) Is it completely 
clear after Hobby Lobby, how this case should come out?

Alan

Alan Brownstein
Professor of Law
UC Davis School of Law

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, June 30, 2014 12:29 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

The entire solution for the non-profits was done by regulation. So I assume 
that extending it to for-profits could also be done by regulation. Of course 
there could be some hidden obstacle that I don’t know about.

The Court found the win-win solution; female employees can get free 
contraceptives, and religious conscientious objectors don’t have to pay. 
However they resolve the remaining objections from many of the non-profits, I 
would be surprised if they disrupt that solution.

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 10:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

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

Re: Hobby Lobby Question

[Scarberry, Mark]

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

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

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

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

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


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

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

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

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

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

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

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

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



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






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

[Alan Brownstein]

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

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

Alan

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

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

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

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

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

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

Steve

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


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

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

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

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

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

Can a court evaluate and reject the religious belief that "providing the means 
for a person to obtain a chemical or device whose principal purpose is to 
terminate a human life, and that 

Re: Hobby Lobby Question

[Steven Jamar]

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

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

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

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

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

Steve

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

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

Re: Hobby Lobby Question

[Vance R. Koven]

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

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


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

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

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

[Arthur Spitzer]

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

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

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

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

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

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

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

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



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


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

> The court accepts without inquiry the assertion that the complicity with
> evil theory is the problem that leads to the substantial burden. It merely
> accepts the claim that the adherents cannot comply because of the
> complicity theory.  It then bootstraps that there would be costs of
> non-compliance.
> At the core the court buys the argument that an attenuated complicity can
> be the basis of a substantial burden.
>
> Sent from Steve's iPhone
>
>
> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer  wrote:
>
> I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably
> requires all courts to simply accept the religious adherent’s claim that
> the burden is substantial."  The majority analyzed whether the burden was
> substantial and found it was because the ACA would impose millions of
> dollars of financial penalties on the plaintiffs if they did not comply.
> Slip op. at 32.  I don't think the Court tells us whether a $100 fine would
> have been a substantial burden.  I'm curious what in the opinion Steve
> points to in support of the proposition that courts may not evaluate the
> substantiality of a burden, especially considering that the Court did
> evaluate that question, as an empirical matter, in this case.
>
> Art Spitzer
>
>
> *Warning*
> *: this message is subject to monitoring by the NSA.*
>
>
> On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar 
> wrote:
>
>> Brown eliminated the constitutional doctrine of separate but equal — in
>> the Brown decision just for education, but it was applied to all racial
>> classifications.  The 1964 Civil Rights Act accomplished much more, of
>> course, but the Brown decision matters a lot.
>>
>> So it is with numerous decisions.  Hobby Lobby’s acceptance of the
>> complicity with evil theory in this attenuated context and its ruling that
>> arguably requires all courts to simply accept the religious adherent’s
>> claim that the burden is substantial, could dramatically change the
>> landscape of RFRA interpretation federally and by example at the state
>> level.These underlying principles could also be restricted by later
>> decisions or expanded.  It is a very troubling expansion of RFRA beyond
>> what was intended originally.  But that is hardly unique to this bit of
>> legislation.
>>
>> I think it is a very bad decision, but not even in the top ten.
>>
>>--
>> Prof. Steven D. Jamar vox:  202-806-8017
>> Director of International Programs, Institute for Intellectual Property
>> and Social Justice http://iipsj.org
>> Howard University School of Law   fax:  202-806-8567
>> http://sdjlaw.org
>>
>>
>> "For all men of good will May 17, 1954, came as a joyous daybreak to end
>> the long night of enforced segregation. . . . It served to transform the
>> fatigue of despair into the buoyancy of hope."
>>
>>
>> Martin Luther King, Jr., in 1960 on Brown v. Board of Education
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> ___
>> 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 mess

Re: Hobby Lobby Question

[Paul Finkelman]

Sandy's idea that Brown did "nothing" is simply wrong.  Brown altered American 
culture in profound ways and set the stage for massive civil rights 
demonstrations, since it signaled the end to legal segregation, and was 
followed in two years by overturning Plessy.  It led to litigation and 
legislation in all kinds of ways, and it forced the Senators of the former 
Confederacy, except for LBJ, Gore, and Kefauver, to out themselves with their 
manifesto. Furthermore, in much of the upper south, as well as in many Catholic 
school systems in the South, it led so some integration.

We need only remember what the US south looked like in 1950 to understand the 
enormous changes Brown led to.




 From: "Levinson, Sanford V" 
To: Law & Religion issues for Law Academics  
Sent: Monday, June 30, 2014 10:20 PM
Subject: RE: Hobby Lobby Question
 


Art raises an interesting point.  For better and worse, Brown in 1954 did 
absolutely nothing, and Brown II settled for the (in)famous “all deliberate 
speed.”  It was the Civil Rights Movement, Lyndon Johnson, and Congress that 
fundamentally changed things, not the Supreme Court that in 1956 engaged in the 
disgraceful evasion of Naim v. Naim.  I’m not sure how much credit Roe should 
get for reforming American abortion law.  That’s the great question raised by 
Gerry Rosenberg’s book.  Same-sex marriage is quite unlike these, incidentally, 
in that the Court can, should it wish to, make it a possibility nation-wide 
simply by the “performative utterance” of declaring that such marriages can’t 
be barred by states.  There will, even in Oklahoma and North Dakota, be 
ministers willing to preside and civil servants who will feel obligated to sell 
the marriage licenses.  It’s far less complicated, in terms of changing the 
behavior of
 thousands upon thousands low-visibility officials, than school segregation.
 
But I also want to emphasize that the utter cynicism is to suggest, while 
maintaining an iniquitous status quo, that the answer lies in Congress.  The 
strongest argument for judicial intervention is indeed the argument of John 
Hart Ely that it is foolish to consign unpopular groups to legislative mercy.  
That was, incidentally, what was so offensive about Frankfurter in 1962 saying 
that the folks in Memphis should “sear the consciences” of the Tennessee 
legislators that never in a million years would have voluntarily given up their 
illegitimate power as a result of malapportionment.  “Power corrupts,” as John 
P. Roche once put it, “and the prospect of losing power corrupts absolutely.”  
So I don’t know how much we disagree after all.
 
sandy
 


From:religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, June 30, 2014 8:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question
 
With respect, I think Sandy's response ("I think that it's utter cynicism to 
suggest possibilities that are politically impossible. The life of the law 
should be experience and not arid logical possibility") is unacceptable.  It 
was politically impossible to get southern states to integrate their public 
schools in 1954.  Did that make it constitutionally unnecessary?  It was 
politically impossible to get many states to allow abortions in 1973.  But it 
happened.  It is politically impossible to get Oklahoma (or Congress) to agree 
to same-sex marriage.  Does that make it constitutionally unnecessary?  "The 
life of the law should be experience," and experience teaches that the nation 
obeys the law.  At least mostly, and at least so far.  And Congress can amend 
RFRA if The People don't like it.

Art Spitzer


Warning: this message is subject to monitoring by the NSA.
 
On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V  
wrote:
I think that it's utter cynicism to suggest possibilities that are politically 
impossible. The life of the law should be experience and not arid logical 
possibility. 
 
Sandy

Sent from my iPhone

On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark"  
wrote:
With regard to Sandy’s comment that there isn’t a chance in hell of getting 
funding from Congress to cover these methods of contraception:
> 
>Do we agree that a less restrictive means is available for purposes of RFRA 
>and (where applicable) constitutional analysis, even if the government 
>(including Congress) is for some reason unwilling to use it? The political 
>difficulty (or impossibility) of getting agreement on implementing an approach 
>does not make it unavailable; it just means that there is no consensus on 
>using it. Do we agree on that point?
> 
>On the question whether govt funding may be a less restrictive means:
> 
>The majority opinion does suggest that the government could be required, if it 
>seeks to advance its compelling interest

Re: Hobby Lobby Question

[Arthur Spitzer]

Sandy Levinson says, "Same-sex marriage is quite unlike these,
incidentally, in that the Court can, should it wish to, make it a
possibility nation-wide simply by the 'performative utterance' of declaring
that such marriages can’t be barred by states.  There will, even in
Oklahoma and North Dakota, be ministers willing to preside and civil
servants who will feel obligated to sell the marriage licenses.  It’s far
less complicated, in terms of changing the behavior of thousands upon
thousands low-visibility officials, than school segregation."

I must be missing something.  Does Sandy think that if the Supreme Court
declares state laws banning same-sex marriages unconstitutional, same-sex
couples living in remote corners of Texas or Virginia will have to travel
to Austin or Charlottesville to find a minister or county clerk willing to
marry them?  After Loving v. Virginia, were interracial couples who wished
to marry required to travel to miscegenation-friendly counties to get
married?  Does Sandy think they should have been?  It seems quite clear to
me that thousands of county clerks will be required to take the steps
necessary to create legal same-sex marriages, whether they like it or not.
And so it should be.  And the Court should not decline to make such a
ruling on the ground that it's "politically impossible."

Art Spitzer


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


On Mon, Jun 30, 2014 at 10:20 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

>  Art raises an interesting point.  For better and worse, Brown in 1954
> did absolutely nothing, and Brown II settled for the (in)famous “all
> deliberate speed.”  It was the Civil Rights Movement, Lyndon Johnson, and
> Congress that fundamentally changed things, not the Supreme Court that in
> 1956 engaged in the disgraceful evasion of Naim v. Naim.  I’m not sure how
> much credit Roe should get for reforming American abortion law.  That’s the
> great question raised by Gerry Rosenberg’s book.  Same-sex marriage is
> quite unlike these, incidentally, in that the Court can, should it wish to,
> make it a possibility nation-wide simply by the “performative utterance” of
> declaring that such marriages can’t be barred by states.  There will, even
> in Oklahoma and North Dakota, be ministers willing to preside and civil
> servants who will feel obligated to sell the marriage licenses.  It’s far
> less complicated, in terms of changing the behavior of thousands upon
> thousands low-visibility officials, than school segregation.
>
>
>
> But I also want to emphasize that the utter cynicism is to suggest, while
> maintaining an iniquitous status quo, that the answer lies in Congress.
> The strongest argument for judicial intervention is indeed the argument of
> John Hart Ely that it is foolish to consign unpopular groups to legislative
> mercy.  That was, incidentally, what was so offensive about Frankfurter in
> 1962 saying that the folks in Memphis should “sear the consciences” of the
> Tennessee legislators that never in a million years would have voluntarily
> given up their illegitimate power as a result of malapportionment.  “Power
> corrupts,” as John P. Roche once put it, “and the prospect of losing power
> corrupts absolutely.”  So I don’t know how much we disagree after all.
>
>
>
> sandy
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Arthur Spitzer
> *Sent:* Monday, June 30, 2014 8:51 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Hobby Lobby Question
>
>
>
> With respect, I think Sandy's response ("I think that it's utter cynicism
> to suggest possibilities that are politically impossible. The life of the
> law should be experience and not arid logical possibility") is
> unacceptable.  It was politically impossible to get southern states to
> integrate their public schools in 1954.  Did that make it constitutionally
> unnecessary?  It was politically impossible to get many states to allow
> abortions in 1973.  But it happened.  It is politically impossible to get
> Oklahoma (or Congress) to agree to same-sex marriage.  Does that make it
> constitutionally unnecessary?  "The life of the law should be experience,"
> and experience teaches that the nation obeys the law.  At least mostly, and
> at least so far.  And Congress can amend RFRA if The People don't like it.
>
> Art Spitzer
>
>
>   *Warning: this message is subject to monitoring by the NSA.*
>
>
>
> On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V <
> slevin...@law.utexas.edu> wrote:
>
> I think that it's utter cynicism to suggest possibilities that are
> politically impossible. 

Re: Hobby Lobby Question

[Steven Jamar]

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

Sent from Steve's iPhone 


> On Jul 1, 2014, at 12:20 AM, Arthur Spitzer  wrote:
> 
> I'm puzzled by Steve Jamar's statement that yesterday's decision "arguably 
> requires all courts to simply accept the religious adherent’s claim that the 
> burden is substantial."  The majority analyzed whether the burden was 
> substantial and found it was because the ACA would impose millions of dollars 
> of financial penalties on the plaintiffs if they did not comply.  Slip op. at 
> 32.  I don't think the Court tells us whether a $100 fine would have been a 
> substantial burden.  I'm curious what in the opinion Steve points to in 
> support of the proposition that courts may not evaluate the substantiality of 
> a burden, especially considering that the Court did evaluate that question, 
> as an empirical matter, in this case.
> 
> Art Spitzer
> 
> 
> Warning: this message is subject to monitoring by the NSA.
> 
> 
> 
>> On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar  wrote:
>> Brown eliminated the constitutional doctrine of separate but equal — in the 
>> Brown decision just for education, but it was applied to all racial 
>> classifications.  The 1964 Civil Rights Act accomplished much more, of 
>> course, but the Brown decision matters a lot.
>> 
>> So it is with numerous decisions.  Hobby Lobby’s acceptance of the 
>> complicity with evil theory in this attenuated context and its ruling that 
>> arguably requires all courts to simply accept the religious adherent’s claim 
>> that the burden is substantial, could dramatically change the landscape of 
>> RFRA interpretation federally and by example at the state level.These 
>> underlying principles could also be restricted by later decisions or 
>> expanded.  It is a very troubling expansion of RFRA beyond what was intended 
>> originally.  But that is hardly unique to this bit of legislation.
>> 
>> I think it is a very bad decision, but not even in the top ten.
>> 
>> -- 
>> Prof. Steven D. Jamar vox:  202-806-8017
>> Director of International Programs, Institute for Intellectual Property and 
>> Social Justice http://iipsj.org
>> Howard University School of Law   fax:  202-806-8567
>> http://sdjlaw.org
>> 
>> "For all men of good will May 17, 1954, came as a joyous daybreak to end the 
>> long night of enforced segregation. . . . It served to transform the fatigue 
>> of despair into the buoyancy of hope."
>> 
>> Martin Luther King, Jr., in 1960 on Brown v. Board of Education
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>> 
>> Please note that messages sent to this large list cannot be viewed as 
>> private.  Anyone can subscribe to the list and read messages that are 
>> posted; people can read the Web archives; and list members can (rightly or 
>> wrongly) forward the messages to others.
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
___
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Hobby Lobby Question

[Arthur Spitzer]

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

Art Spitzer


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


On Mon, Jun 30, 2014 at 11:17 PM, Steven Jamar 
wrote:

> Brown eliminated the constitutional doctrine of separate but equal — in
> the Brown decision just for education, but it was applied to all racial
> classifications.  The 1964 Civil Rights Act accomplished much more, of
> course, but the Brown decision matters a lot.
>
> So it is with numerous decisions.  Hobby Lobby’s acceptance of the
> complicity with evil theory in this attenuated context and its ruling that
> arguably requires all courts to simply accept the religious adherent’s
> claim that the burden is substantial, could dramatically change the
> landscape of RFRA interpretation federally and by example at the state
> level.These underlying principles could also be restricted by later
> decisions or expanded.  It is a very troubling expansion of RFRA beyond
> what was intended originally.  But that is hardly unique to this bit of
> legislation.
>
> I think it is a very bad decision, but not even in the top ten.
>
>--
> Prof. Steven D. Jamar vox:  202-806-8017
> Director of International Programs, Institute for Intellectual Property
> and Social Justice http://iipsj.org
> Howard University School of Law   fax:  202-806-8567
> http://sdjlaw.org
>
>
> "For all men of good will May 17, 1954, came as a joyous daybreak to end
> the long night of enforced segregation. . . . It served to transform the
> fatigue of despair into the buoyancy of hope."
>
>
> Martin Luther King, Jr., in 1960 on Brown v. Board of Education
>
>
>
>
>
>
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Hobby Lobby Question

[Steven Jamar]

Brown eliminated the constitutional doctrine of separate but equal — in the 
Brown decision just for education, but it was applied to all racial 
classifications.  The 1964 Civil Rights Act accomplished much more, of course, 
but the Brown decision matters a lot.

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

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

-- 
Prof. Steven D. Jamar vox:  202-806-8017
Director of International Programs, Institute for Intellectual Property and 
Social Justice http://iipsj.org
Howard University School of Law   fax:  202-806-8567
http://sdjlaw.org

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

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







___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Hobby Lobby Question

[Levinson, Sanford V]

Art raises an interesting point.  For better and worse, Brown in 1954 did 
absolutely nothing, and Brown II settled for the (in)famous “all deliberate 
speed.”  It was the Civil Rights Movement, Lyndon Johnson, and Congress that 
fundamentally changed things, not the Supreme Court that in 1956 engaged in the 
disgraceful evasion of Naim v. Naim.  I’m not sure how much credit Roe should 
get for reforming American abortion law.  That’s the great question raised by 
Gerry Rosenberg’s book.  Same-sex marriage is quite unlike these, incidentally, 
in that the Court can, should it wish to, make it a possibility nation-wide 
simply by the “performative utterance” of declaring that such marriages can’t 
be barred by states.  There will, even in Oklahoma and North Dakota, be 
ministers willing to preside and civil servants who will feel obligated to sell 
the marriage licenses.  It’s far less complicated, in terms of changing the 
behavior of thousands upon thousands low-visibility officials, than school 
segregation.

But I also want to emphasize that the utter cynicism is to suggest, while 
maintaining an iniquitous status quo, that the answer lies in Congress.  The 
strongest argument for judicial intervention is indeed the argument of John 
Hart Ely that it is foolish to consign unpopular groups to legislative mercy.  
That was, incidentally, what was so offensive about Frankfurter in 1962 saying 
that the folks in Memphis should “sear the consciences” of the Tennessee 
legislators that never in a million years would have voluntarily given up their 
illegitimate power as a result of malapportionment.  “Power corrupts,” as John 
P. Roche once put it, “and the prospect of losing power corrupts absolutely.”  
So I don’t know how much we disagree after all.

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Arthur Spitzer
Sent: Monday, June 30, 2014 8:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

With respect, I think Sandy's response ("I think that it's utter cynicism to 
suggest possibilities that are politically impossible. The life of the law 
should be experience and not arid logical possibility") is unacceptable.  It 
was politically impossible to get southern states to integrate their public 
schools in 1954.  Did that make it constitutionally unnecessary?  It was 
politically impossible to get many states to allow abortions in 1973.  But it 
happened.  It is politically impossible to get Oklahoma (or Congress) to agree 
to same-sex marriage.  Does that make it constitutionally unnecessary?  "The 
life of the law should be experience," and experience teaches that the nation 
obeys the law.  At least mostly, and at least so far.  And Congress can amend 
RFRA if The People don't like it.

Art Spitzer

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

On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V 
mailto:slevin...@law.utexas.edu>> wrote:
I think that it's utter cynicism to suggest possibilities that are politically 
impossible. The life of the law should be experience and not arid logical 
possibility.

Sandy

Sent from my iPhone

On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
With regard to Sandy’s comment that there isn’t a chance in hell of getting 
funding from Congress to cover these methods of contraception:

Do we agree that a less restrictive means is available for purposes of RFRA and 
(where applicable) constitutional analysis, even if the government (including 
Congress) is for some reason unwilling to use it? The political difficulty (or 
impossibility) of getting agreement on implementing an approach does not make 
it unavailable; it just means that there is no consensus on using it. Do we 
agree on that point?

On the question whether govt funding may be a less restrictive means:

The majority opinion does suggest that the government could be required, if it 
seeks to advance its compelling interest, to incur a cost that is small 
compared to the cost of the entire program. A means of advancing that interest 
that requires the spending of money could be a less restrictive means – less 
restrictive of religious liberty – than a requirement that the individual or 
business incur the cost. See the discussion that begins at the top of page 41, 
and this excerpt from pp. 42-43:

“The most straightforward way of doing this would be for the Government to 
assume the cost of providing the four contraceptives at issue to any women who 
are unable to obtain them under their health-insurance policies due to their 
employers’ religious objections. … It seems likely, however, that the cost of 
providing the forms of contraceptives at issue in these cases (if not all 
FDA-approved contraceptives) would be minor when compared with the overall cost 
of ACA. … If, as HHS tells us, providi

Re: Hobby Lobby Question

[Arthur Spitzer]

With respect, I think Sandy's response ("I think that it's utter cynicism
to suggest possibilities that are politically impossible. The life of the
law should be experience and not arid logical possibility") is
unacceptable.  It was politically impossible to get southern states to
integrate their public schools in 1954.  Did that make it constitutionally
unnecessary?  It was politically impossible to get many states to allow
abortions in 1973.  But it happened.  It is politically impossible to get
Oklahoma (or Congress) to agree to same-sex marriage.  Does that make it
constitutionally unnecessary?  "The life of the law should be experience,"
and experience teaches that the nation obeys the law.  At least mostly, and
at least so far.  And Congress can amend RFRA if The People don't like it.

Art Spitzer


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


On Mon, Jun 30, 2014 at 9:11 PM, Levinson, Sanford V <
slevin...@law.utexas.edu> wrote:

>  I think that it's utter cynicism to suggest possibilities that are
> politically impossible. The life of the law should be experience and not
> arid logical possibility.
>
>  Sandy
>
> Sent from my iPhone
>
> On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" <
> mark.scarbe...@pepperdine.edu> wrote:
>
>   With regard to Sandy’s comment that there isn’t a chance in hell of
> getting funding from Congress to cover these methods of contraception:
>
>
>
> Do we agree that a less restrictive means is available for purposes of
> RFRA and (where applicable) constitutional analysis, even if the government
> (including Congress) is for some reason unwilling to use it? The political
> difficulty (or impossibility) of getting agreement on implementing an
> approach does not make it unavailable; it just means that there is no
> consensus on using it. Do we agree on that point?
>
>
>
> On the question whether govt funding may be a less restrictive means:
>
>
>
> The majority opinion does suggest that the government could be required,
> if it seeks to advance its compelling interest, to incur a cost that is
> small compared to the cost of the entire program. A means of advancing that
> interest that requires the spending of money could be a less restrictive
> means – less restrictive of religious liberty – than a requirement that the
> individual or business incur the cost. See the discussion that begins at
> the top of page 41, and this excerpt from pp. 42-43:
>
>
>
> “The most straightforward way of doing this would be for the Government to
> assume the cost of providing the four contraceptives at issue to any women
> who are unable to obtain them under their health-insurance policies due to
> their employers’ religious objections. … It seems likely, however, that the
> cost of providing the forms of contraceptives at issue in these cases (if
> not all FDA-approved contraceptives) would be minor when compared with the
> overall cost of ACA. … If, as HHS tells us, providing all women with
> cost-free access to all FDA-approved methods of contraception is a
> Government interest of the highest order, it is hard to understand HHS’s
> argument that it cannot be required under RFRA to pay anything in order to
> achieve this important goal.
>
>  “We do not doubt that cost may be an important factor in the
> least-restrictive-means analysis, but both RFRA and its sister statute,
> RLUIPA, may in some circumstances require the Government to expend
> additional funds to accommodate citizens’ religious beliefs. Cf.
> §2000cc–3(c) (RLUIPA: ‘[T]his chapter may require a government to incur
> expenses in its own operations to avoid imposing a substantial burden on
> religious
>
> exercise.’). HHS’s view that RFRA can never require the Government to
> spend even a small amount reflects a judgment about the importance of
> religious liberty that was not shared by the Congress that enacted that
> law.”
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu
> ] *On Behalf Of *Levinson, Sanford V
> *Sent:* Monday, June 30, 2014 12:28 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Hobby Lobby Question
>
>
>
> This is a good question.  AS I read the opinion it tends to rely on the
> fact that the insurance providers will be required to provide the coverage
> “for free” (given that it will overall cost less to cover than would
> pregnancies), so that the government must allocate not a single new penny.
> If, on the other hand, a new appropriation, even of a penny, would be
> 

Re: Hobby Lobby Question

[Levinson, Sanford V]

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

Sandy

Sent from my iPhone

On Jun 30, 2014, at 8:05 PM, "Scarberry, Mark" 
mailto:mark.scarbe...@pepperdine.edu>> wrote:

With regard to Sandy's comment that there isn't a chance in hell of getting 
funding from Congress to cover these methods of contraception:

Do we agree that a less restrictive means is available for purposes of RFRA and 
(where applicable) constitutional analysis, even if the government (including 
Congress) is for some reason unwilling to use it? The political difficulty (or 
impossibility) of getting agreement on implementing an approach does not make 
it unavailable; it just means that there is no consensus on using it. Do we 
agree on that point?

On the question whether govt funding may be a less restrictive means:

The majority opinion does suggest that the government could be required, if it 
seeks to advance its compelling interest, to incur a cost that is small 
compared to the cost of the entire program. A means of advancing that interest 
that requires the spending of money could be a less restrictive means - less 
restrictive of religious liberty - than a requirement that the individual or 
business incur the cost. See the discussion that begins at the top of page 41, 
and this excerpt from pp. 42-43:

"The most straightforward way of doing this would be for the Government to 
assume the cost of providing the four contraceptives at issue to any women who 
are unable to obtain them under their health-insurance policies due to their 
employers' religious objections. ... It seems likely, however, that the cost of 
providing the forms of contraceptives at issue in these cases (if not all 
FDA-approved contraceptives) would be minor when compared with the overall cost 
of ACA. ... If, as HHS tells us, providing all women with cost-free access to 
all FDA-approved methods of contraception is a Government interest of the 
highest order, it is hard to understand HHS's argument that it cannot be 
required under RFRA to pay anything in order to achieve this important goal.
 "We do not doubt that cost may be an important factor in the 
least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, 
may in some circumstances require the Government to expend additional funds to 
accommodate citizens' religious beliefs. Cf. ?2000cc-3(c) (RLUIPA: '[T]his 
chapter may require a government to incur expenses in its own operations to 
avoid imposing a substantial burden on religious
exercise.'). HHS's view that RFRA can never require the Government to spend 
even a small amount reflects a judgment about the importance of religious 
liberty that was not shared by the Congress that enacted that law."

Mark

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 12:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

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

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 9:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
___
To post, send message to 
Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin

RE: Hobby Lobby Question

[Scarberry, Mark]

With regard to Sandy’s comment that there isn’t a chance in hell of getting 
funding from Congress to cover these methods of contraception:

Do we agree that a less restrictive means is available for purposes of RFRA and 
(where applicable) constitutional analysis, even if the government (including 
Congress) is for some reason unwilling to use it? The political difficulty (or 
impossibility) of getting agreement on implementing an approach does not make 
it unavailable; it just means that there is no consensus on using it. Do we 
agree on that point?

On the question whether govt funding may be a less restrictive means:

The majority opinion does suggest that the government could be required, if it 
seeks to advance its compelling interest, to incur a cost that is small 
compared to the cost of the entire program. A means of advancing that interest 
that requires the spending of money could be a less restrictive means – less 
restrictive of religious liberty – than a requirement that the individual or 
business incur the cost. See the discussion that begins at the top of page 41, 
and this excerpt from pp. 42-43:

“The most straightforward way of doing this would be for the Government to 
assume the cost of providing the four contraceptives at issue to any women who 
are unable to obtain them under their health-insurance policies due to their 
employers’ religious objections. … It seems likely, however, that the cost of 
providing the forms of contraceptives at issue in these cases (if not all 
FDA-approved contraceptives) would be minor when compared with the overall cost 
of ACA. … If, as HHS tells us, providing all women with cost-free access to all 
FDA-approved methods of contraception is a Government interest of the highest 
order, it is hard to understand HHS’s argument that it cannot be required under 
RFRA to pay anything in order to achieve this important goal.
 “We do not doubt that cost may be an important factor in the 
least-restrictive-means analysis, but both RFRA and its sister statute, RLUIPA, 
may in some circumstances require the Government to expend additional funds to 
accommodate citizens’ religious beliefs. Cf. §2000cc–3(c) (RLUIPA: ‘[T]his 
chapter may require a government to incur expenses in its own operations to 
avoid imposing a substantial burden on religious
exercise.’). HHS’s view that RFRA can never require the Government to spend 
even a small amount reflects a judgment about the importance of religious 
liberty that was not shared by the Congress that enacted that law.”

Mark

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Monday, June 30, 2014 12:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

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

sandy

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 9:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Hobby Lobby Question

[K Chen]

Alan Brownstein wrote:

I had a couple of questions and thoughts. First, I read Alito to say that
> corporations are a fiction, but we will treat them as persons in order to
> protect the rights of real persons – here the owners of the corporation. I
> think it would have been clearer and more accurate to say that the owners
> of closely held corporations are persons and they do not lose their rights
> as persons under RFRA by electing to do business through a corporate form.
> Is my reading correct and would the alternative reading be preferable or
> make a difference in later cases?


By my read (Slip op at 29) for the purposes of sincerity, the right and
exercise stems from the natural person and into the fictions they own and
operate, but the corporation itself has the right to further a policy of
protecting natural persons. My worry with your formulation is that too much
focus on the owner/operator may impact any read of their sincerity. If
owner Bob operates closely held Acme Corporation with religious
restrictions, but not closley held Collective Corporation, does Bob not
sincerely hold his religious beliefs?

As to the least restrictive alternatives, it seems like there cannot be
restrictions for me but not for thee, at least when it comes to religious
accommodation. On the other hand, there might be set up for saying that an
existing opt-out accommodation that the government demonstrates is the
lowest cost may presumably be a least restrictive means, maybe even
presumptively so. At least, those are the horses I might trade to avoid
perverse incentives.

Other than that, it seems like the majority has given themselves very
little room to move in interpreting "least restrictive means" in the future.


-Kevin Chen


On Mon, Jun 30, 2014 at 5:07 PM, Alan Brownstein 
wrote:

>  I think the least restrictive means analysis maximizes the possibility
> of a win/win solution – at least it would if we did not have a
> dysfunctional political system.
>
>
>
> I had a couple of questions and thoughts. First, I read Alito to say that
> corporations are a fiction, but we will treat them as persons in order to
> protect the rights of real persons – here the owners of the corporation. I
> think it would have been clearer and more accurate to say that the owners
> of closely held corporations are persons and they do not lose their rights
> as persons under RFRA by electing to do business through a corporate form.
> Is my reading correct and would the alternative reading be preferable or
> make a difference in later cases?
>
>
>
> Second, I read both Alito and Kennedy to say that while government taking
> on the cost of providing benefits may be a least restrictive alternative,
> the cost to government of doing so is relevant to determining whether a
> government as provider plan qualifies as a least restrictive alternative.
>
>
>
> Third, the Court never addresses the question of whether RFRA requires the
> government to grant an accommodation to religious non-profits. It doesn’t
> have to because the accommodation was already in place. But does the
> Court’s emphasis on the existing accommodation for religious non-profits as
> the foundation for its least restrictive means analysis create a
> disincentive for granting such accommodations in the future in later cases.
> Under the Court’s analysis, if you grant an accommodation to religious
> non-profits, you have to grant a similar accommodation to for-profit
> businesses and closely held corporations. But what if you don’t grant an
> accommodation to the religious non-profits? What if the government argued
> in such a case that thousands of women would lose benefits if the
> accommodation was granted and the plaintiffs argued that the government
> should take on this cost or assign it to some third party – like insurance
> companies (but there was no concession or reason to think that the
> assignment of coverage would be cost free.) Is it completely clear after
> Hobby Lobby, how this case should come out?
>
>
>
> Alan
>
>
>
> Alan Brownstein
>
> Professor of Law
>
> UC Davis School of Law
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock
> *Sent:* Monday, June 30, 2014 12:29 PM
>
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Hobby Lobby Question
>
>
>
> The entire solution for the non-profits was done by regulation. So I
> assume that extending it to for-profits could also be done by regulation.
> Of course there could be some hidden obstacle that I don’t know about.
>
>
>
> The Court found the win-win solution; female employees can get free
> contraceptives, and religious conscientious objectors don’t have

RE: Hobby Lobby Question

[Alan Brownstein]

I think the least restrictive means analysis maximizes the possibility of a 
win/win solution – at least it would if we did not have a dysfunctional 
political system.

I had a couple of questions and thoughts. First, I read Alito to say that 
corporations are a fiction, but we will treat them as persons in order to 
protect the rights of real persons – here the owners of the corporation. I 
think it would have been clearer and more accurate to say that the owners of 
closely held corporations are persons and they do not lose their rights as 
persons under RFRA by electing to do business through a corporate form. Is my 
reading correct and would the alternative reading be preferable or make a 
difference in later cases?

Second, I read both Alito and Kennedy to say that while government taking on 
the cost of providing benefits may be a least restrictive alternative, the cost 
to government of doing so is relevant to determining whether a government as 
provider plan qualifies as a least restrictive alternative.

Third, the Court never addresses the question of whether RFRA requires the 
government to grant an accommodation to religious non-profits. It doesn’t have 
to because the accommodation was already in place. But does the Court’s 
emphasis on the existing accommodation for religious non-profits as the 
foundation for its least restrictive means analysis create a disincentive for 
granting such accommodations in the future in later cases. Under the Court’s 
analysis, if you grant an accommodation to religious non-profits, you have to 
grant a similar accommodation to for-profit businesses and closely held 
corporations. But what if you don’t grant an accommodation to the religious 
non-profits? What if the government argued in such a case that thousands of 
women would lose benefits if the accommodation was granted and the plaintiffs 
argued that the government should take on this cost or assign it to some third 
party – like insurance companies (but there was no concession or reason to 
think that the assignment of coverage would be cost free.) Is it completely 
clear after Hobby Lobby, how this case should come out?

Alan

Alan Brownstein
Professor of Law
UC Davis School of Law

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, June 30, 2014 12:29 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

The entire solution for the non-profits was done by regulation. So I assume 
that extending it to for-profits could also be done by regulation. Of course 
there could be some hidden obstacle that I don’t know about.

The Court found the win-win solution; female employees can get free 
contraceptives, and religious conscientious objectors don’t have to pay. 
However they resolve the remaining objections from many of the non-profits, I 
would be surprised if they disrupt that solution.

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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 10:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Hobby Lobby Question

[Marty Lederman]

As have I:

http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvii-upshot-of.html


On Mon, Jun 30, 2014 at 4:26 PM, Friedman, Howard M. <
howard.fried...@utoledo.edu> wrote:

>  I have just posted some (probably controversial) preliminary thoughts on
> Hobby Lobby on Religion Clause--
> http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html
>
>  Howard Friedman
>  --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [
> tcb...@stthomas.edu]
> *Sent:* Monday, June 30, 2014 4:12 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: Hobby Lobby Question
>
>   The majority opinion gives ammunition to the plaintiffs in the
> nonprofit cases by reemphasizing that when the plaintiffs determine that a
> certain complicity violates their beliefs, the courts shouldn't find that
> too attenuated to be a burden.
>
> On the other hand, Kennedy in his concurrence emphasizes the nonprofit
> (the insurer-pays) accommodation generally as the solution, and he seems
> not particularly enamored of the nonprofits' argument that the government
> can just pay for contraception with a new funding program. (The majority
> discussed that argument approvingly, and Kennedy joined the majority
> opinion in full; so it's one of those questions about parsing the opinion
> of a swing justice who also joined the majority opinion.)
>
> So isn't the Court pointing toward some form of the nonprofit
> accommodation with a different trigger. Are there reasons why the
> government can't adopt as a trigger the simple notice to HHS, the solution
> the Court adopted in the stay order in the Little Sisters case? Or was the
> government just waiting to see if it would win in Hobby Lobby?
>
> -
>
> Thomas C. Berg
>
> James L. Oberstar Professor of Law and Public Policy
>
> University of St. Thomas School of Law
>
> MSL 400, 1000 LaSalle Avenue
>
> Minneapolis, MN   55403-2015
>
> Phone: 651 962 4918
>
> Fax: 651 962 4881
>
> E-mail: tcb...@stthomas.edu
>
> SSRN: http://ssrn.com/author='261564
>
> Weblog: http://www.mirrorofjustice.blogs.com
>
>
> 
> --
> *From:* religionlaw-boun...@lists.ucla.edu [
> religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [
> dlayc...@virginia.edu]
> *Sent:* Monday, June 30, 2014 2:28 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Hobby Lobby Question
>
>   The entire solution for the non-profits was done by regulation. So I
> assume that extending it to for-profits could also be done by regulation.
> Of course there could be some hidden obstacle that I don’t know about.
>
>
>
> The Court found the win-win solution; female employees can get free
> contraceptives, and religious conscientious objectors don’t have to pay.
> However they resolve the remaining objections from many of the non-profits,
> I would be surprised if they disrupt that solution.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
> *Sent:* Monday, June 30, 2014 10:54 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Hobby Lobby Question
>
>
>
> As we are all digesting the Hobby Lobby decision, let me ask a question.
> The court suggests that a less restrictive means would be that the gov't
> provides the contraceptives directly (similar to how it handles non-profit
> objectors). What kind of government action would it take to institute such
> a program? A new statute? A new regulation? An interpretive rule? Something
> else?
>
>
>
> --
> Hillel Y. Levin
> Associate Professor
>
> University of Georgia
> School of Law
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
>
> ___
> 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.

Re: Hobby Lobby Question

[Richard Friedman]

I know.  But it's not as if you were uninvolved, either in the legislation
or in the case.  Congratulations are certainly in order!

Rich




On Mon, Jun 30, 2014 at 4:41 PM, Douglas Laycock 
wrote:

> Will do. I think overblown rhetoric from both sides was to be expected.
>
>
>
> It was not my case; I just filed an amicus brief.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Richard Friedman
> *Sent:* Monday, June 30, 2014 4:36 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Hobby Lobby Question
>
>
>
> Hi, Doug.  Congrats on the result!  I haven't focused enough on it to have
> any clear sense of the merits, but the outcome does seem sensible to me,
> and it sure seems that some of the rhetoric I'm seeing on the other side --
> much of it in support of fund-raising appeals -- is way overblown.
>
> I hope all else is well.  Please pass on my warm regards to Terry.
>
> Best,
>
> Rich
>
>
>
> On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock 
> wrote:
>
> The entire solution for the non-profits was done by regulation. So I
> assume that extending it to for-profits could also be done by regulation.
> Of course there could be some hidden obstacle that I don’t know about.
>
>
>
> The Court found the win-win solution; female employees can get free
> contraceptives, and religious conscientious objectors don’t have to pay.
> However they resolve the remaining objections from many of the non-profits,
> I would be surprised if they disrupt that solution.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
> *Sent:* Monday, June 30, 2014 10:54 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Hobby Lobby Question
>
>
>
> As we are all digesting the Hobby Lobby decision, let me ask a question.
> The court suggests that a less restrictive means would be that the gov't
> provides the contraceptives directly (similar to how it handles non-profit
> objectors). What kind of government action would it take to institute such
> a program? A new statute? A new regulation? An interpretive rule? Something
> else?
>
>
>
> --
> Hillel Y. Levin
> Associate Professor
>
> University of Georgia
> School of Law
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
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RE: Hobby Lobby Question

[Douglas Laycock]

Will do. I think overblown rhetoric from both sides was to be expected.

 

It was not my case; I just filed an amicus brief.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard Friedman
Sent: Monday, June 30, 2014 4:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Hobby Lobby Question

 

Hi, Doug.  Congrats on the result!  I haven't focused enough on it to have any 
clear sense of the merits, but the outcome does seem sensible to me, and it 
sure seems that some of the rhetoric I'm seeing on the other side -- much of it 
in support of fund-raising appeals -- is way overblown.

I hope all else is well.  Please pass on my warm regards to Terry.

Best,

Rich 

 

On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock mailto:dlayc...@virginia.edu> > wrote:

The entire solution for the non-profits was done by regulation. So I assume 
that extending it to for-profits could also be done by regulation. Of course 
there could be some hidden obstacle that I don’t know about.

 

The Court found the win-win solution; female employees can get free 
contraceptives, and religious conscientious objectors don’t have to pay. 
However they resolve the remaining objections from many of the non-profits, I 
would be surprised if they disrupt that solution.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546  

 

From: religionlaw-boun...@lists.ucla.edu 
<mailto:religionlaw-boun...@lists.ucla.edu>  
[mailto:religionlaw-boun...@lists.ucla.edu 
<mailto:religionlaw-boun...@lists.ucla.edu> ] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 10:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

 

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?


 

-- 
Hillel Y. Levin
Associate Professor

University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452  
hle...@uga.edu <mailto:hle...@uga.edu> 
hillelle...@gmail.com <mailto:hillelle...@gmail.com> 
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645


___
To post, send message to Religionlaw@lists.ucla.edu 
<mailto:Religionlaw@lists.ucla.edu> 
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messages to others.

 

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messages to others.

Re: Hobby Lobby Question

[Richard Friedman]

Hi, Doug.  Congrats on the result!  I haven't focused enough on it to have
any clear sense of the merits, but the outcome does seem sensible to me,
and it sure seems that some of the rhetoric I'm seeing on the other side --
much of it in support of fund-raising appeals -- is way overblown.

I hope all else is well.  Please pass on my warm regards to Terry.

Best,

Rich


On Mon, Jun 30, 2014 at 3:28 PM, Douglas Laycock 
wrote:

> The entire solution for the non-profits was done by regulation. So I
> assume that extending it to for-profits could also be done by regulation.
> Of course there could be some hidden obstacle that I don’t know about.
>
>
>
> The Court found the win-win solution; female employees can get free
> contraceptives, and religious conscientious objectors don’t have to pay.
> However they resolve the remaining objections from many of the non-profits,
> I would be surprised if they disrupt that solution.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin
> *Sent:* Monday, June 30, 2014 10:54 AM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Hobby Lobby Question
>
>
>
> As we are all digesting the Hobby Lobby decision, let me ask a question.
> The court suggests that a less restrictive means would be that the gov't
> provides the contraceptives directly (similar to how it handles non-profit
> objectors). What kind of government action would it take to institute such
> a program? A new statute? A new regulation? An interpretive rule? Something
> else?
>
>
>
> --
> Hillel Y. Levin
> Associate Professor
>
> University of Georgia
> School of Law
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Hobby Lobby Question

[Friedman, Howard M.]

I have just posted some (probably controversial) preliminary thoughts on Hobby 
Lobby on Religion Clause-- 
http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html

Howard Friedman

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Berg, Thomas C. [tcb...@stthomas.edu]
Sent: Monday, June 30, 2014 4:12 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby Question

The majority opinion gives ammunition to the plaintiffs in the nonprofit cases 
by reemphasizing that when the plaintiffs determine that a certain complicity 
violates their beliefs, the courts shouldn't find that too attenuated to be a 
burden.

On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the 
insurer-pays) accommodation generally as the solution, and he seems not 
particularly enamored of the nonprofits' argument that the government can just 
pay for contraception with a new funding program. (The majority discussed that 
argument approvingly, and Kennedy joined the majority opinion in full; so it's 
one of those questions about parsing the opinion of a swing justice who also 
joined the majority opinion.)

So isn't the Court pointing toward some form of the nonprofit accommodation 
with a different trigger. Are there reasons why the government can't adopt as a 
trigger the simple notice to HHS, the solution the Court adopted in the stay 
order in the Little Sisters case? Or was the government just waiting to see if 
it would win in Hobby Lobby?

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [dlayc...@virginia.edu]
Sent: Monday, June 30, 2014 2:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

The entire solution for the non-profits was done by regulation. So I assume 
that extending it to for-profits could also be done by regulation. Of course 
there could be some hidden obstacle that I don’t know about.

The Court found the win-win solution; female employees can get free 
contraceptives, and religious conscientious objectors don’t have to pay. 
However they resolve the remaining objections from many of the non-profits, I 
would be surprised if they disrupt that solution.

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 10:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

--
Hillel Y. Levin
Associate Professor
University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu<mailto:hle...@uga.edu>
hillelle...@gmail.com<mailto:hillelle...@gmail.com>
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: Hobby Lobby Question

[Berg, Thomas C.]

The majority opinion gives ammunition to the plaintiffs in the nonprofit cases 
by reemphasizing that when the plaintiffs determine that a certain complicity 
violates their beliefs, the courts shouldn't find that too attenuated to be a 
burden.

On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the 
insurer-pays) accommodation generally as the solution, and he seems not 
particularly enamored of the nonprofits' argument that the government can just 
pay for contraception with a new funding program. (The majority discussed that 
argument approvingly, and Kennedy joined the majority opinion in full; so it's 
one of those questions about parsing the opinion of a swing justice who also 
joined the majority opinion.)

So isn't the Court pointing toward some form of the nonprofit accommodation 
with a different trigger. Are there reasons why the government can't adopt as a 
trigger the simple notice to HHS, the solution the Court adopted in the stay 
order in the Little Sisters case? Or was the government just waiting to see if 
it would win in Hobby Lobby?

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Douglas Laycock [dlayc...@virginia.edu]
Sent: Monday, June 30, 2014 2:28 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Hobby Lobby Question

The entire solution for the non-profits was done by regulation. So I assume 
that extending it to for-profits could also be done by regulation. Of course 
there could be some hidden obstacle that I don’t know about.

The Court found the win-win solution; female employees can get free 
contraceptives, and religious conscientious objectors don’t have to pay. 
However they resolve the remaining objections from many of the non-profits, I 
would be surprised if they disrupt that solution.

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

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 10:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

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

Re: Hobby Lobby Question

[Steven Jamar]

Hobby Lobby interpretation — quick take:

1.  It seems to have lowered the threshold for substantial burden to something 
lower than most lower courts had been using and adopts both the complicity with 
evil theory and says it cannot second guess a complicity with evil claim of 
burden or substantial burden.

2.  Health care is a compelling interest.

3.  Accommodation is always a less restrictive means than compelling someone to 
follow a general law.  So, isn't accommodation (despite Justice Alito’s 
disclaimer to the contrary) always going to be required if at all possible 
despite the administrative burden on the government in trying to insure 
compliance in an ever-more-complicated accomodationist regime?   

I think the corporation having religious freedom rights under RFRA was a 
foregone conclusion and is correct — though I would argue that the calculus for 
compellingness and least restrictive alternatives should probably be different 
based on the nature of the corporation — small, large, closely held, publicly 
traded, etc.

So, are we not at a unit-veto situation where each religious adherent can show 
a complicity with evil for any particular federal program and then force the 
government to accommodate him or her or it?

Steve



On Jun 30, 2014, at 10:54 AM, Hillel Y. Levin  wrote:

> As we are all digesting the Hobby Lobby decision, let me ask a question. The 
> court suggests that a less restrictive means would be that the gov't provides 
> the contraceptives directly (similar to how it handles non-profit objectors). 
> What kind of government action would it take to institute such a program? A 
> new statute? A new regulation? An interpretive rule? Something else?
> 
> -- 
> Hillel Y. Levin
> Associate Professor
> University of Georgia
> School of Law
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page: 
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
> ___
> 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.

-- 
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

--
Become the change you seek in the world.
-- Mahatma Gandhi.






___
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Hobby Lobby Question

[Douglas Laycock]

The entire solution for the non-profits was done by regulation. So I assume 
that extending it to for-profits could also be done by regulation. Of course 
there could be some hidden obstacle that I don’t know about.

 

The Court found the win-win solution; female employees can get free 
contraceptives, and religious conscientious objectors don’t have to pay. 
However they resolve the remaining objections from many of the non-profits, I 
would be surprised if they disrupt that solution.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 10:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

 

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?


 

-- 
Hillel Y. Levin
Associate Professor

University of Georgia
School of Law
120 Herty Dr.
Athens, GA 30602
(678) 641-7452
hle...@uga.edu <mailto:hle...@uga.edu> 
hillelle...@gmail.com <mailto:hillelle...@gmail.com> 
SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645

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Re: Hobby Lobby Question

[Marty Lederman]

That's not right.  The accommodation that the Court recognizes as a less
restrictive alternative -- the one that the government offers to non-profit
objectors, described at pages 9-10 of the majority opinion -- is *not *that
the the gov't itself provide contraceptives (or reimbursement for
contraceptives) directly to women, but instead that the government requires
the insurer, such as Aetna, to provide the reimbursements separate and
apart from the employer's sponsored plan.


On Mon, Jun 30, 2014 at 10:54 AM, Hillel Y. Levin 
wrote:

> As we are all digesting the Hobby Lobby decision, let me ask a question.
> The court suggests that a less restrictive means would be that the gov't
> provides the contraceptives directly (similar to how it handles non-profit
> objectors). What kind of government action would it take to institute such
> a program? A new statute? A new regulation? An interpretive rule? Something
> else?
>
> --
> Hillel Y. Levin
> Associate Professor
> University of Georgia
> School of Law
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
>
> ___
> 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.
>
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RE: Hobby Lobby Question

[Levinson, Sanford V]

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

sandy

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin
Sent: Monday, June 30, 2014 9:54 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby Question

As we are all digesting the Hobby Lobby decision, let me ask a question. The 
court suggests that a less restrictive means would be that the gov't provides 
the contraceptives directly (similar to how it handles non-profit objectors). 
What kind of government action would it take to institute such a program? A new 
statute? A new regulation? An interpretive rule? Something else?

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

[Hillel Y. Levin]

As we are all digesting the Hobby Lobby decision, let me ask a question.
The court suggests that a less restrictive means would be that the gov't
provides the contraceptives directly (similar to how it handles non-profit
objectors). What kind of government action would it take to institute such
a program? A new statute? A new regulation? An interpretive rule? Something
else?

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

[Graber, Mark]

Doug’s comment about rhetorical flourishes is certainly fair and I am joining 
this conversation late.  But let me push a few people.  There is , of course, a 
libertarian claim that Hobby Lobby can never coerce employees, since no one is 
coerced to work for Hobby Lobby (and an analogous claim that the government can 
never coerce Hobby Lobby, since no one is obligated to employ other people).  I 
take it that general agreement exists that neither of these claims is count (I 
share the consensus).

Doug suggests the following baseline.  We should be more inclined to give 
employers exemptions from generally applicable laws when that means they will 
refrain from bestowing a benefit on their employees than when they exemption 
will entitle them to inflict a harm.

The issue is whether the benefit/harm distinction will hold.  There is, of 
course, a gigantic literature on this and I suspect different members of the 
list will take different positions on what constitutes a benefit and what 
constitutes a harm.  And some of us will suspect that we can probably with a 
little work translate most benefits into harms and most harms into benefits.  
One very standard definition is that a harm makes somebody worse off than they 
were previously but a benefit makes them better off (and for some reasons 
hinted at below, problems exist with this obvious definition).

So now consider the case of X.  X used to work for GM, which provided her with 
a health care plan that included contraceptive coverage.  X then moves to Hobby 
Lobby.  Is there refusal to provide her with a health care plan that includes 
contraceptive coverage a harm (her government mandated employment package is 
worse) or a benefit.  I’m not sure and I am even less sure the harm/benefit 
distinction is that helpful here.

MAG


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Thursday, June 12, 2014 12:03 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Simple Hobby Lobby question

I was responding to Professor Greenwood’s rhetorical flourish, which others 
have also indulged, about how Hobby Lobby is imposing its religious views on 
its employees.  The legal significance of that rhetoric, and of correcting it, 
may be marginal. It at least means that the employees do not have a 
countervailing RFRA claim or a Title VII religious-accommodation claim.

But harm to third parties, or any sort, is relevant to the analysis at the 
compelling-interest stage. There is also a baseline question: Hobby Lobby is 
not affirmatively inflicting harm, but refusing to provide a benefit.

And yes, employers can burden their employee’s religious practice, as lots of 
Title VII cases illustrate.


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

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Thursday, June 12, 2014 11:54 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Simple Hobby Lobby question

Doug Laycock writes:.” Any burden on the employees is economic. They are not 
forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious 
rules, or violate the rules of their own religions. But if Hobby Lobby is 
forced to pay for contraception coverage, the burden is religious. Only Hobby 
Lobby and the Greens are at risk of being forced to live by some other 
religion’s view of the matter and to violate the rules of their own religion. “

Two questions.

First, could Hobby Lobby as a conceptual matter ever impose a religious burden 
on their employees.  After all, no one is forced to work for Hobby Lobby, so 
even if Hobby Lobby insisted that all employees worship a golden calf, the only 
burden would be economic (i.e., the benefits of working for Hobby Lobby as 
opposed to being unemployed or having another job). (this is not a legal 
question concerning whether such a burden is constitutional, but a conceptual 
question about whether such a burden is religious or economic).

Second, assume that Hobby Lobby can as a conceptual matter impose religious 
burdens on their employees, do religious burdens have a different status than 
economic burdens.  Suppose, for example, a Hobby Lobby employee makes a 
compelling factual case that a) their religion both requires sexual activity (a 
reasonable interpretation of Jewish law for married persons) and contraception 
where the marriage partners cannot afford any or another child and b) they 
cannot afford contraception unless it is offered by the employer’s health care 
plan.  Different result?  I admit this is a far-fetched hypothetical, but I 
suspect we can quickly develop more realistic examples if religious burden

Re: Simple Hobby Lobby question

[Steven Jamar]

Religion-in-employment cases should not be one-sided or even two sided — there 
are at least three parties with serious interests that come into play–the 
employer’s religious exercise; the employees’ interest in employment, in the 
benefits required by law, in the employee’s (singularly or collectively) free 
exercise or freedom from imposition of the employer’s religion; and the 
interest of the people/the state/the public interest in seeing that secular 
purposes are followed.

If RFRA is applied to protect Hobby Lobby in this case, then the various 
interests of the employees are being ignored and the religious interests of the 
employer are being allowed to trump all of the employee interests and all of 
the public interest that led to the neutral law in the first place.  

I would prefer to see this case decided on no-substantial burden grounds and 
the “complicity” theory utterly rejected as a grounds to refuse to comply with 
a secularly purposed law that has such an attenuated impact on the free 
exercise of anyone, but I agree with those who have noted that this requirement 
could well pass RFRA strict scrutiny even if the threshhold is deemed to have 
been met.

If Hobby Lobby can ignore this law, then the concept of ordered liberty is 
undermined in favor of atomization and religion-based unit vetoes.  That is 
wrong policy and is certainly not compelled as a matter of existing 
constitutional law or RFRA itself.

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


"There is no cosmic law forbidding the triumph of extremism in America."

Thomas McIntyre






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Re: Simple Hobby Lobby question

[James Oleske]

Got it -- I see the distinction. To put it in the "imposition" terms the
Court used in Lee, one could say it's the difference between an "employer
imposing his religious faith on his employees" (e.g., by requiring them to
participate in prayer meetings contrary to their own beliefs) and an
"employer imposing some of *the costs* of his religious faith on his
employees" (e.g., denying them an employee benefit because of the
employer's religious opposition to the benefit). Even though Lee used the
former phrase, it clearly was relying on the latter concept when it
explained the burden that granting an employer exemption would impose on
the employee. Nonetheless, since that's the same burden on employees at
issue in Hobby Lobby, it would seem like Lee should still control. Alas, I
suspect a majority of the Court is not going to agree with my view on that
...

- Jim


On Thu, Jun 12, 2014 at 8:37 AM, Douglas Laycock 
wrote:

> One issue at a time. Yes, Hobby Lobby’s claim goes away if we accept
> Marty’s argument that Hobby Lobby has a viable option to just discontinue
> its health insurance plan.
>
>
>
> I was addressing a different issue. Any burden on the employees is
> economic. They are not forced to adopt Hobby Lobby’s religious views, live
> by Hobby Lobby’s religious rules, or violate the rules of their own
> religions. But if Hobby Lobby is forced to pay for contraception coverage,
> the burden is religious. Only Hobby Lobby and the Greens are at risk of
> being forced to live by some other religion’s view of the matter and to
> violate the rules of their own religion.
>
>
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
>
>
> *From:* James Oleske [mailto:jole...@lclark.edu ]
> *Sent:* Thursday, June 12, 2014 12:02 AM
> *To:* Law & Religion issues for Law Academics
> *Cc:* Daniel J. Greenwood; Douglas Laycock
> *Subject:* Re: Simple Hobby Lobby question
>
>
>
> Without attempting to address the various corporate law issues being
> debated in this thread, I did want to ask a more intuitive question about
> this argument:
>
> "[An exemption for Hobby Lobby] is not an imposition of the Greens'
> religion on the employees. No employee is forced to live by Hobby Lobby's
> religious values; they are entirely free to buy emergency contraception
> with their own money. The only people at risk of being forced to live by
> other people's religious values in this case are the Greens."
>
>
>
> Given that Hobby Lobby is "entirely free to pay" the opt-out tax with its
> "own money," doesn't this argument depend on finding that the relative cost
> to Hobby Lobby of paying the tax is so much higher than the relative cost
> to employees of purchasing the disputed contraception that only the former
> can be deemed to constitute "force" or an "imposition"? And, at least with
> respect to the most effective and costly of the contraceptive methods at
> issue (IUDs), is it really so obvious that such a finding would be
> warranted?
>
> Moreover, regardless of how we might decide the "imposition on employees"
> question in the first instance, didn't the Supreme Court already address
> the issue explicitly in its pre-Smith jurisprudence when it said that
> granting the Amish employer's request for an exemption in Lee would operate
> to "impose the employer's religious faith on the employees"?
>
> Of course, if Smith had never been decided, and if the Court today was
> refining its own constitutional free-exercise exemption jurisprudence
> instead of applying a statute designed to restore the Court's pre-Smith
> jurisprudence, one could certainly argue that the Court should revisit the
> characterization of employer exemptions in Lee. But that's not where we
> would seem to be given the Smith decision and RFRA.
>
> - Jim
>
>
>
> On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock 
> wrote:
>
> Sorry, but now you have shifted to a completely different argument. The
> alleged imposition on employees has nothing to do with corporate law; that
> argument would be exactly the same if Hobby Lobby were a sole
> proprietorship.
>
> If Hobby Lobby wins, the employees will not receive a particular benefit
> from Hobby Lobby, and that benefit has some economic value to those
> employees who would use it. The relevance of that fact is a genuine issue.
>
> But it is not an imposition of the Greens' religion on the employees. No
> employee is forced to live by Hobby Lobby's

RE: Simple Hobby Lobby question

[Douglas Laycock]

I was responding to Professor Greenwood’s rhetorical flourish, which others 
have also indulged, about how Hobby Lobby is imposing its religious views on 
its employees.  The legal significance of that rhetoric, and of correcting it, 
may be marginal. It at least means that the employees do not have a 
countervailing RFRA claim or a Title VII religious-accommodation claim.

 

But harm to third parties, or any sort, is relevant to the analysis at the 
compelling-interest stage. There is also a baseline question: Hobby Lobby is 
not affirmatively inflicting harm, but refusing to provide a benefit. 

 

And yes, employers can burden their employee’s religious practice, as lots of 
Title VII cases illustrate. 

 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Thursday, June 12, 2014 11:54 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Simple Hobby Lobby question

 

Doug Laycock writes:.” Any burden on the employees is economic. They are not 
forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious 
rules, or violate the rules of their own religions. But if Hobby Lobby is 
forced to pay for contraception coverage, the burden is religious. Only Hobby 
Lobby and the Greens are at risk of being forced to live by some other 
religion’s view of the matter and to violate the rules of their own religion. “

 

Two questions.  

 

First, could Hobby Lobby as a conceptual matter ever impose a religious burden 
on their employees.  After all, no one is forced to work for Hobby Lobby, so 
even if Hobby Lobby insisted that all employees worship a golden calf, the only 
burden would be economic (i.e., the benefits of working for Hobby Lobby as 
opposed to being unemployed or having another job). (this is not a legal 
question concerning whether such a burden is constitutional, but a conceptual 
question about whether such a burden is religious or economic).

 

Second, assume that Hobby Lobby can as a conceptual matter impose religious 
burdens on their employees, do religious burdens have a different status than 
economic burdens.  Suppose, for example, a Hobby Lobby employee makes a 
compelling factual case that a) their religion both requires sexual activity (a 
reasonable interpretation of Jewish law for married persons) and contraception 
where the marriage partners cannot afford any or another child and b) they 
cannot afford contraception unless it is offered by the employer’s health care 
plan.  Different result?  I admit this is a far-fetched hypothetical, but I 
suspect we can quickly develop more realistic examples if religious burdens are 
conceptually possible.

 

MAG

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RE: Simple Hobby Lobby question

[Graber, Mark]

Doug Laycock writes:.” Any burden on the employees is economic. They are not 
forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious 
rules, or violate the rules of their own religions. But if Hobby Lobby is 
forced to pay for contraception coverage, the burden is religious. Only Hobby 
Lobby and the Greens are at risk of being forced to live by some other 
religion’s view of the matter and to violate the rules of their own religion. “

Two questions.

First, could Hobby Lobby as a conceptual matter ever impose a religious burden 
on their employees.  After all, no one is forced to work for Hobby Lobby, so 
even if Hobby Lobby insisted that all employees worship a golden calf, the only 
burden would be economic (i.e., the benefits of working for Hobby Lobby as 
opposed to being unemployed or having another job). (this is not a legal 
question concerning whether such a burden is constitutional, but a conceptual 
question about whether such a burden is religious or economic).

Second, assume that Hobby Lobby can as a conceptual matter impose religious 
burdens on their employees, do religious burdens have a different status than 
economic burdens.  Suppose, for example, a Hobby Lobby employee makes a 
compelling factual case that a) their religion both requires sexual activity (a 
reasonable interpretation of Jewish law for married persons) and contraception 
where the marriage partners cannot afford any or another child and b) they 
cannot afford contraception unless it is offered by the employer’s health care 
plan.  Different result?  I admit this is a far-fetched hypothetical, but I 
suspect we can quickly develop more realistic examples if religious burdens are 
conceptually possible.

MAG
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Simple Hobby Lobby question

[Douglas Laycock]

One issue at a time. Yes, Hobby Lobby’s claim goes away if we accept Marty’s 
argument that Hobby Lobby has a viable option to just discontinue its health 
insurance plan.

 

I was addressing a different issue. Any burden on the employees is economic. 
They are not forced to adopt Hobby Lobby’s religious views, live by Hobby 
Lobby’s religious rules, or violate the rules of their own religions. But if 
Hobby Lobby is forced to pay for contraception coverage, the burden is 
religious. Only Hobby Lobby and the Greens are at risk of being forced to live 
by some other religion’s view of the matter and to violate the rules of their 
own religion. 

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: James Oleske [mailto:jole...@lclark.edu] 
Sent: Thursday, June 12, 2014 12:02 AM
To: Law & Religion issues for Law Academics
Cc: Daniel J. Greenwood; Douglas Laycock
Subject: Re: Simple Hobby Lobby question

 

Without attempting to address the various corporate law issues being debated in 
this thread, I did want to ask a more intuitive question about this argument:

"[An exemption for Hobby Lobby] is not an imposition of the Greens' religion on 
the employees. No employee is forced to live by Hobby Lobby's religious values; 
they are entirely free to buy emergency contraception with their own money. The 
only people at risk of being forced to live by other people's religious values 
in this case are the Greens."

 

Given that Hobby Lobby is "entirely free to pay" the opt-out tax with its "own 
money," doesn't this argument depend on finding that the relative cost to Hobby 
Lobby of paying the tax is so much higher than the relative cost to employees 
of purchasing the disputed contraception that only the former can be deemed to 
constitute "force" or an "imposition"? And, at least with respect to the most 
effective and costly of the contraceptive methods at issue (IUDs), is it really 
so obvious that such a finding would be warranted?

Moreover, regardless of how we might decide the "imposition on employees" 
question in the first instance, didn't the Supreme Court already address the 
issue explicitly in its pre-Smith jurisprudence when it said that granting the 
Amish employer's request for an exemption in Lee would operate to "impose the 
employer's religious faith on the employees"? 

Of course, if Smith had never been decided, and if the Court today was refining 
its own constitutional free-exercise exemption jurisprudence instead of 
applying a statute designed to restore the Court's pre-Smith jurisprudence, one 
could certainly argue that the Court should revisit the characterization of 
employer exemptions in Lee. But that's not where we would seem to be given the 
Smith decision and RFRA.

- Jim

 

On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock mailto:dlayc...@virginia.edu> > wrote:

Sorry, but now you have shifted to a completely different argument. The alleged 
imposition on employees has nothing to do with corporate law; that argument 
would be exactly the same if Hobby Lobby were a sole proprietorship.

If Hobby Lobby wins, the employees will not receive a particular benefit from 
Hobby Lobby, and that benefit has some economic value to those employees who 
would use it. The relevance of that fact is a genuine issue.

But it is not an imposition of the Greens' religion on the employees. No 
employee is forced to live by Hobby Lobby's religious values; they are entirely 
free to buy emergency contraception with their own money. The only people at 
risk of being forced to live by other people's religious values in this case 
are the Greens.

On Wed, 11 Jun 2014 22:27:34 +
 "Daniel J. Greenwood" mailto:daniel.greenw...@hofstra.edu> > wrote:
>Corporate law is clear.  Hobby Lobby’s assets do not belong to the Greens and 
>they are forbidden by law from acting as if they owned them.  This is true in 
>each of their corporate roles.
>
>So either they are claiming that their own religious exercise is burdened 
>because they are not allowed to use property not their own in violation of law 
>– in which case, Free Exercise is burdened by the ordinary rules of property, 
>theft and fraud.   How is their claim different from a claim that Hobby Lobby 
>need not pay its suppliers or label its goods honestly, because they prefer to 
>maximize profits in order to use the corporation’s funds for religious 
>purposes?
>
>Or they are claiming that the corporation’s exercise rights are burdened, in 
>which case they have transformed the Free Exercise clause into an endorsement 
>of Establishment:
>
>Granting Exercise rights to an organization is the same as allowing the 
>organiz

Re: Simple Hobby Lobby question

[Marty Lederman]

hallenge?
>
>
>
> Of course someone must choose what values a corporation embraces, what
> views it will express, and what actions it will take. Under current law the
> someone is the board of directors or the set of managers chosen by the
> directors (unless a close-corporation statute allows shareholders qua
> shareholders to manage the corporation’s affairs). The directors of course
> have to consider the views of shareholders, who have ultimate control by
> way of voting their shares to determine who the directors will be.
>
>
>
> If shareholders don’t object, why would it violate corporation law for a
> corporation to act on the religious beliefs of its managers or its
> shareholders? The ultra vires doctrine is extraordinarily limited. The
> managers violate no corporation law duties to employees or to the broader
> society by doing so, and even if their actions would otherwise be improper
> under corporate waste theories or some other corporate law theories with
> respect to shareholders, the shareholders can authorize and ratify their
> actions, and can simply choose not to object.
>
>
>
> There is nothing in corporation law that requires corporations to provide
> particular benefits to employees. Government regulation may require
> provision of benefits, but in this case one of the questions is whether
> government regulation in fact has done so, because RFRA may limit the ACA
> regulation. Corporation law says nothing about the applicability of RFRA,
> Prof. Greenwood’s protestations to the contrary.
>
>
>
> Note also that a corporation’s shareholders may have reasons for choosing
> particular directors, and its directors have reasons for choosing
> particular managers, even if (or because of) their knowledge that there are
> certain actions that the persons they choose will not, as a matter of
> conscience, take. If those persons would be required to take such actions,
> they would refuse to serve. To the extent that the law effectively would
> prevent such persons from taking positions as directors or managers,
> wouldn’t it burden their exercise of religious freedom?
>
>
>
> Let’s go along the spectrum of business organizations and see where Prof.
> Greenwood thinks the enterprise or its managers cease to have rights under
> the Constitution or RFRA.
>
>
>
> He admits that a sole proprietorship – which has no identity apart from
> the individual proprietor – may take religious actions without violating
> the laws governing business organizations, and that the proprietor has
> constitutional and statutory RFRA rights, whatever those might be.
>
>
>
> What about general partnerships? The partners take part in management as
> owners of partnership interests, though not, at least under the most common
> partnership law, as owners of the partnership property. General partners do
> not have limited liability, and again, their management role stems from
> their ownership interest (in the absence of agreement otherwise).
>
>
>
> What about limited liability partnerships? The partners manage as owners
> of the enterprise, but they have limited liability; do they forfeit
> religious freedom rights. What about LLCs? Owners – members – manage the
> LLC, but they have the protection of limited liability. What about close
> corporations (which, under the laws of some states, may be managed directly
> by shareholders)?
>
>
>
> Does a corporation’s status as for-profit or not-for-profit matter? If so,
> why?
>
>
>
> Again, Prof. Greenwood’s position, especially his strident use of terms
> like theft and fraud, is hard to fathom.
>
>
>
> Mark
>
>
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
>
>
>
>
>
>
> *From:* Scarberry, Mark
> *Sent:* Wednesday, June 11, 2014 3:03 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Simple Hobby Lobby question
>
>
>
> Prof. Greenwood overstates the protection corporation law gives to
> officers and directors from civil liability, whether or not they are
> shareholders. Apart from cases in which the law makes them directly
> responsible for the corporation's obligations (e.g., responsible person
> liability for unpaid withholding taxes), officers and directors generally
> are, as I understand the matter, liable for their own tortious actions even
> if performed as agents of the corporation. That is true for shareholders
> who actively participate in the corporation's activities and who use the
> corporate form in part for the benefit of limited liability. The principle
> of limited liability protects shareholders and officers and directors from
> liability for the 

RE: Simple Hobby Lobby question

[Scarberry, Mark]

He admits that a sole proprietorship – which has no identity apart from the 
individual proprietor – may take religious actions without violating the laws 
governing business organizations, and that the proprietor has constitutional 
and statutory RFRA rights, whatever those might be.

What about general partnerships? The partners take part in management as owners 
of partnership interests, though not, at least under the most common 
partnership law, as owners of the partnership property. General partners do not 
have limited liability, and again, their management role stems from their 
ownership interest (in the absence of agreement otherwise).

What about limited liability partnerships? The partners manage as owners of the 
enterprise, but they have limited liability; do they forfeit religious freedom 
rights. What about LLCs? Owners – members – manage the LLC, but they have the 
protection of limited liability. What about close corporations (which, under 
the laws of some states, may be managed directly by shareholders)?

Does a corporation’s status as for-profit or not-for-profit matter? If so, why?

Again, Prof. Greenwood’s position, especially his strident use of terms like 
theft and fraud, is hard to fathom.

Mark

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



From: Scarberry, Mark
Sent: Wednesday, June 11, 2014 3:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: Simple Hobby Lobby question

Prof. Greenwood overstates the protection corporation law gives to officers and 
directors from civil liability, whether or not they are shareholders. Apart 
from cases in which the law makes them directly responsible for the 
corporation's obligations (e.g., responsible person liability for unpaid 
withholding taxes), officers and directors generally are, as I understand the 
matter, liable for their own tortious actions even if performed as agents of 
the corporation. That is true for shareholders who actively participate in the 
corporation's activities and who use the corporate form in part for the benefit 
of limited liability. The principle of limited liability protects shareholders 
and officers and directors from liability for the acts of other agents of the 
corporation, but not for their own. The major protection is from liability for 
torts committed by other agents (e.g., the truck driver who negligently runs 
over a pedestrian) and from liability on contracts (though often the other 
party will insist on a personal guaranty of performance, as with many loan 
agreements). For a simple discussion of this from a California point of view, 
see http://www.centurycitybar.com/newslettertemplate/April11/article3.htm.

Of course, the issue here is moral responsibility, not legal responsibility. 
But it's still important to see that the use of the corporate form is not the 
get out of jail free card that it is being portrayed as.

Prof. Greenwood's use of terms like "theft" and "fraud" is not helpful in 
moving our discussion forward, nor is his invocation of that boogeyman of the 
law -- Lochner. And the business judgment rule has nothing to do with 
obligations to third parties, as opposed to potential liability to the 
corporation itself and to its shareholders


Mark


Mark S. Scarberry
Pepperdine University School of Law
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Re: Simple Hobby Lobby question

[James Oleske]

Without attempting to address the various corporate law issues being
debated in this thread, I did want to ask a more intuitive question about
this argument:

"[An exemption for Hobby Lobby] is not an imposition of the Greens'
religion on the employees. No employee is forced to live by Hobby Lobby's
religious values; they are entirely free to buy emergency contraception
with their own money. The only people at risk of being forced to live by
other people's religious values in this case are the Greens."

Given that Hobby Lobby is "entirely free to pay" the opt-out tax with its
"own money," doesn't this argument depend on finding that the relative cost
to Hobby Lobby of paying the tax is so much higher than the relative cost
to employees of purchasing the disputed contraception that only the former
can be deemed to constitute "force" or an "imposition"? And, at least with
respect to the most effective and costly of the contraceptive methods at
issue (IUDs), is it really so obvious that such a finding would be
warranted?

Moreover, regardless of how we might decide the "imposition on employees"
question in the first instance, didn't the Supreme Court already address
the issue explicitly in its pre-Smith jurisprudence when it said that
granting the Amish employer's request for an exemption in Lee would operate
to "impose the employer's religious faith on the employees"?

Of course, if Smith had never been decided, and if the Court today was
refining its own constitutional free-exercise exemption jurisprudence
instead of applying a statute designed to restore the Court's pre-Smith
jurisprudence, one could certainly argue that the Court should revisit the
characterization of employer exemptions in Lee. But that's not where we
would seem to be given the Smith decision and RFRA.

- Jim

On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock 
wrote:

> Sorry, but now you have shifted to a completely different argument. The
> alleged imposition on employees has nothing to do with corporate law; that
> argument would be exactly the same if Hobby Lobby were a sole
> proprietorship.
>
> If Hobby Lobby wins, the employees will not receive a particular benefit
> from Hobby Lobby, and that benefit has some economic value to those
> employees who would use it. The relevance of that fact is a genuine issue.
>
> But it is not an imposition of the Greens' religion on the employees. No
> employee is forced to live by Hobby Lobby's religious values; they are
> entirely free to buy emergency contraception with their own money. The only
> people at risk of being forced to live by other people's religious values
> in this case are the Greens.
>
> On Wed, 11 Jun 2014 22:27:34 +
>  "Daniel J. Greenwood"  wrote:
> >Corporate law is clear.  Hobby Lobby’s assets do not belong to the Greens
> and they are forbidden by law from acting as if they owned them.  This is
> true in each of their corporate roles.
> >
> >So either they are claiming that their own religious exercise is burdened
> because they are not allowed to use property not their own in violation of
> law – in which case, Free Exercise is burdened by the ordinary rules of
> property, theft and fraud.   How is their claim different from a claim that
> Hobby Lobby need not pay its suppliers or label its goods honestly, because
> they prefer to maximize profits in order to use the corporation’s funds for
> religious purposes?
> >
> >Or they are claiming that the corporation’s exercise rights are burdened,
> in which case they have transformed the Free Exercise clause into an
> endorsement of Establishment:
> >
> >Granting Exercise rights to an organization is the same as allowing the
> organization’s leaders to impose the leaders’ religious views on followers.
>  In my view, this is the simplest way to understand what the Greens are
> demanding here -- they seek to establish their religious views in Hobby
> Lobby, coercively requiring all Hobby Lobby employees to set aside personal
> views in favor of the institutional view.
> >
> >This is not a Free Exercise claim at all.  It’s just a question of
> corporate law – does corporate law grant the executives, directors,
> shareholders or trust beneficiaries the right to establish a corporate
> religion and impose it, through contract and agency, on employees?
> Corporate law is clear that neither shareholders nor trust beneficiaries
> have any such right.  It is less clear about executives and directors.  I’m
> no Free Exercise expert, but I don’t see how the right to impose your
> religion on others – whether protected by state corporate law or not, and
> however modified by Federal limitations on the rights of employers – could
> be a Free Exercise right, and or limiting it a burden on Free Exercise.
> >
>
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Pleas

RE: Simple Hobby Lobby question

[Daniel J. Greenwood]

Actually, the two arguments are closely related.  

The Greens seek to require their employees to pay twice for contraceptives -- 
once via the insurance that, by law, must include it, and then again if they 
actually want to receive it.  State action aside, their claim is the same as 
the head of the DMV insisting that he has a free exercise right to force state 
employees to pay a tithe to his church (and, of course, leaving them free to 
also support their own churches from their wages).  That's not free exercise; 
it is establishment.  

The Greens seek no individual right and bear no burden.  The ACA requirement 
falls on the company and they are not the company.  Instead, they are seeking, 
in effect, to free the corporation to follow "its" religious beliefs by 
refusing to pay employees compensation that the employees are otherwise legally 
entitled to receive.  The Greens seek to impose a collective, corporate, 
established religion on their employees. 

In contrast, if the Greens were the company -- as they could have chosen to be 
-- then there would be a conflict between the rights of employees to be free of 
the Greens' religion and the rights of the Greens/employer to refuse to pay for 
things they purport to disapprove of on religious grounds. (The resolution of 
that conflict would depend on whether we give primacy to the basic free market 
principles of equality of money and positions open to talent, or to the equally 
basic feudal policy, deeply enmeshed in our contract and agency law, of 
personal status relations and the right to refuse to deal.  The decision is 
obvious for doctrinaire liberals in both the US and European senses of the 
word, but may be quite difficult for others.)  

But they are not the company.  Under our law, the company should have no claim 
to religious rights of its own independent of the rights of the people -- 
employees and investors alike -- who make it up.  

Fundamentally, the issue here is who gets to decide the corporation's religious 
practices.  The key FA value -- not law -- is that we should opt not to make a 
collective decision so that individuals can be most free to make individual 
ones.  

The FA law is, or should be, that corporate law is not a subset of FA law.  The 
question of how corporations regulate their internal religious practices is, or 
should be, an issue for state corporate law and state and federal employment 
and market regulation, including the ACA.  Since the ACA, these ordinary 
sources of law clearly hold that for purposes of medical insurance, no 
corporate executive has the right to require that all corporate participants 
conform to a particular religious view -- that is, the corporation has no 
religion.  Each individual must be allowed to decide for herself whether or not 
to use the contraceptives at issue.  The FA and RFRA have nothing useful to 
add.  



-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu] 
Sent: Wednesday, June 11, 2014 8:49 PM
To: Daniel J. Greenwood; Douglas Laycock; 'Law & Religion issues for Law 
Academics'
Subject: Re: Simple Hobby Lobby question

Sorry, but now you have shifted to a completely different argument. The alleged 
imposition on employees has nothing to do with corporate law; that argument 
would be exactly the same if Hobby Lobby were a sole proprietorship.

If Hobby Lobby wins, the employees will not receive a particular benefit from 
Hobby Lobby, and that benefit has some economic value to those employees who 
would use it. The relevance of that fact is a genuine issue.

But it is not an imposition of the Greens' religion on the employees. No 
employee is forced to live by Hobby Lobby's religious values; they are entirely 
free to buy emergency contraception with their own money. The only people at 
risk of being forced to live by other people's religious values in this case 
are the Greens. 

On Wed, 11 Jun 2014 22:27:34 +
 "Daniel J. Greenwood"  wrote:
>Corporate law is clear.  Hobby Lobby’s assets do not belong to the Greens and 
>they are forbidden by law from acting as if they owned them.  This is true in 
>each of their corporate roles.
>
>So either they are claiming that their own religious exercise is burdened 
>because they are not allowed to use property not their own in violation of law 
>– in which case, Free Exercise is burdened by the ordinary rules of property, 
>theft and fraud.   How is their claim different from a claim that Hobby Lobby 
>need not pay its suppliers or label its goods honestly, because they prefer to 
>maximize profits in order to use the corporation’s funds for religious 
>purposes?
>
>Or they are claiming that the corporation’s exercise rights are burdened, in 
>which case they have transformed the Free Exercise clause into an endorsement 
>of Establishment:
>
>Granting Exercise rights to an or

RE: Simple Hobby Lobby question

[Daniel J. Greenwood]

I don't know exactly what the reference is here.  

But if the question is whether the CEO or dominant shareholder of a publicly 
traded shareholder has a constitutionally protected First Amendment right to 
use the powers of his office to impose his values on corporate employees, my 
answer is of course not.  

No sensible theory of the First Amendment prevents us from our using the 
legislative process to determine how much power to give to executives and 
investors as a matter of corporate governance, whether in publicly traded or 
closely held corporations. The point of the FA is to protect speech and 
religion, personal freedom and autonomy and democratic-republican politics -- 
not to allow incumbent officeholders to abuse their office. 

Without knowing exactly what form of imposition is at issue, I'm not going to 
opine on statutory law, but the general rule is that corporate executives have 
a great deal of discretion to create corporate norms and require corporate 
agents to abide by them.  Shareholders have no such power.   If we had a better 
statutory scheme than we do, employees would have more of the basic liberal 
freedoms -- speech, privacy, religion, non-discrimination, due process, 
protection of settled expectations -- against their employers than they do. But 
that is another issue for another day.   

  

-Original Message-
From: Speir, Ian [mailto:isp...@lrrlaw.com] 
Sent: Wednesday, June 11, 2014 10:26 PM
To: Law & Religion issues for Law Academics
Cc: Daniel J. Greenwood; Douglas Laycock
Subject: Re: Simple Hobby Lobby question

While we're on the topic, I'd like to know Prof. Greenwood's views on Howard 
Schultz, who regularly "imposes" his values -- moral values -- on his employees 
and customers, not all of which employees and customers agree with. Does the 
same corporate analysis apply to Starbucks? Is Schultz engaged in "theft" and 
violations of his fiduciary duties? (I recognize that what Starbucks does is 
not "religious" (as such) but I would think the corporate law analysis is the 
same, if not more stringent given that Starbucks is publicly traded, not 
privately held like Hobby Lobby.)

Sent from my iPhone

> On Jun 11, 2014, at 6:50 PM, "Douglas Laycock"  wrote:
>
> Sorry, but now you have shifted to a completely different argument. The 
> alleged imposition on employees has nothing to do with corporate law; that 
> argument would be exactly the same if Hobby Lobby were a sole proprietorship.
>
> If Hobby Lobby wins, the employees will not receive a particular benefit from 
> Hobby Lobby, and that benefit has some economic value to those employees who 
> would use it. The relevance of that fact is a genuine issue.
>
> But it is not an imposition of the Greens' religion on the employees. No 
> employee is forced to live by Hobby Lobby's religious values; they are 
> entirely free to buy emergency contraception with their own money. The only 
> people at risk of being forced to live by other people's religious values in 
> this case are the Greens.
>
> On Wed, 11 Jun 2014 22:27:34 +
> "Daniel J. Greenwood"  wrote:
>> Corporate law is clear.  Hobby Lobby's assets do not belong to the Greens 
>> and they are forbidden by law from acting as if they owned them.  This is 
>> true in each of their corporate roles.
>>
>> So either they are claiming that their own religious exercise is burdened 
>> because they are not allowed to use property not their own in violation of 
>> law - in which case, Free Exercise is burdened by the ordinary rules of 
>> property, theft and fraud.   How is their claim different from a claim that 
>> Hobby Lobby need not pay its suppliers or label its goods honestly, because 
>> they prefer to maximize profits in order to use the corporation's funds for 
>> religious purposes?
>>
>> Or they are claiming that the corporation's exercise rights are burdened, in 
>> which case they have transformed the Free Exercise clause into an 
>> endorsement of Establishment:
>>
>> Granting Exercise rights to an organization is the same as allowing the 
>> organization's leaders to impose the leaders' religious views on followers.  
>> In my view, this is the simplest way to understand what the Greens are 
>> demanding here -- they seek to establish their religious views in Hobby 
>> Lobby, coercively requiring all Hobby Lobby employees to set aside personal 
>> views in favor of the institutional view.
>>
>> This is not a Free Exercise claim at all.  It's just a question of corporate 
>> law - does corporate law grant the executives, directors, shareholders or 
>> trust beneficiaries the right to establish a corporat

Re: Simple Hobby Lobby question

[Douglas Laycock]

Sorry, but now you have shifted to a completely different argument. The alleged 
imposition on employees has nothing to do with corporate law; that argument 
would be exactly the same if Hobby Lobby were a sole proprietorship.

If Hobby Lobby wins, the employees will not receive a particular benefit from 
Hobby Lobby, and that benefit has some economic value to those employees who 
would use it. The relevance of that fact is a genuine issue.

But it is not an imposition of the Greens' religion on the employees. No 
employee is forced to live by Hobby Lobby's religious values; they are entirely 
free to buy emergency contraception with their own money. The only people at 
risk of being forced to live by other people's religious values in this case 
are the Greens. 

On Wed, 11 Jun 2014 22:27:34 +
 "Daniel J. Greenwood"  wrote:
>Corporate law is clear.  Hobby Lobby’s assets do not belong to the Greens and 
>they are forbidden by law from acting as if they owned them.  This is true in 
>each of their corporate roles.
>
>So either they are claiming that their own religious exercise is burdened 
>because they are not allowed to use property not their own in violation of law 
>– in which case, Free Exercise is burdened by the ordinary rules of property, 
>theft and fraud.   How is their claim different from a claim that Hobby Lobby 
>need not pay its suppliers or label its goods honestly, because they prefer to 
>maximize profits in order to use the corporation’s funds for religious 
>purposes?
>
>Or they are claiming that the corporation’s exercise rights are burdened, in 
>which case they have transformed the Free Exercise clause into an endorsement 
>of Establishment:
>
>Granting Exercise rights to an organization is the same as allowing the 
>organization’s leaders to impose the leaders’ religious views on followers.  
>In my view, this is the simplest way to understand what the Greens are 
>demanding here -- they seek to establish their religious views in Hobby Lobby, 
>coercively requiring all Hobby Lobby employees to set aside personal views in 
>favor of the institutional view.
>
>This is not a Free Exercise claim at all.  It’s just a question of corporate 
>law – does corporate law grant the executives, directors, shareholders or 
>trust beneficiaries the right to establish a corporate religion and impose it, 
>through contract and agency, on employees?   Corporate law is clear that 
>neither shareholders nor trust beneficiaries have any such right.  It is less 
>clear about executives and directors.  I’m no Free Exercise expert, but I 
>don’t see how the right to impose your religion on others – whether protected 
>by state corporate law or not, and however modified by Federal limitations on 
>the rights of employers – could be a Free Exercise right, and or limiting it a 
>burden on Free Exercise.
>
>
>From: Douglas Laycock [mailto:dlayc...@virginia.edu]
>Sent: Wednesday, June 11, 2014 5:09 PM
>To: Daniel J. Greenwood; 'Law & Religion issues for Law Academics'
>Subject: RE: Simple Hobby Lobby question
>
>In the RFRA context, moral responsibility is what we’re talking about. The 
>Green’s religious exercise is burdened because they are being required to 
>violate the moral obligations of their faith.
>
>I agree about the effects of limited liability in tort and contract. I should 
>have been more clear that, as the child porn example suggested, that I was 
>thinking of criminal responsibility. An individual cannot insulate himself 
>from criminal prosecution by setting up a corporation that he wholly controls 
>and then causing the corporation to violate the law. There are also 
>non-criminal regulatory examples, such as the liability of controlling 
>shareholders under the securities laws.
>
>I am no expert in these areas and can’t cite you a string of cases, although I 
>could cite a few. But a closely held corporation is not a get-out-of-jail-free 
>card. And it doesn’t really matter whether the government says the controlling 
>individuals are liable for what the corporation did, because they controlled 
>it, or are liable for what they did individually in their roles as 
>shareholders, directors, or officers. Either way you formulate it would be 
>equally applicable to the Greens.
>
>Douglas Laycock
>Robert E. Scott Distinguished Professor of Law
>University of Virginia Law School
>580 Massie Road
>Charlottesville, VA  22903
> 434-243-8546
>
>From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu]
>Sent: Wednesday, June 11, 2014 4:55 PM
>To: Douglas Laycock; Law & Religion issues for Law Academics
>Subject: RE: Simple Hobby Lobby question
>
>
>I think this is not a correct statement of corporate law.
>
>
>
>Th

Re: Simple Hobby Lobby question

[Marc DeGirolami]

It’s a quite minor and likely unimportant point in this particular exchange, I 
admit (unfortunately these are my specialty), but I would like to second Mark’s 
remark in the final paragraph of his comment below that animadversive analogy 
to Lochner may perhaps be inapt in this context. I take it that the crucial 
criticism of Lochner has to do with its dependence on unenumerated 
rights—constitutional or otherwise. That ought to be enough to drive a pencil 
through the heart of the analogy, unless one is prepared to resuscitate it with 
lots and lots of argument.

With best wishes,

Marc

From: , Mark 
mailto:mark.scarbe...@pepperdine.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Thursday, June 12, 2014 at 12:02 AM
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: Re: Simple Hobby Lobby question

Prof. Greenwood overstates the protection corporation law gives to officers and 
directors from civil liability, whether or not they are shareholders. Apart 
from cases in which the law makes them directly responsible for the 
corporation's obligations (e.g., responsible person liability for unpaid 
withholding taxes), officers and directors generally are, as I understand the 
matter, liable for their own tortious actions even if performed as agents of 
the corporation. That is true for shareholders who actively participate in the 
corporation's activities and who use the corporate form in part for the benefit 
of limited liability. The principle of limited liability protects shareholders 
and officers and directors from liability for the acts of other agents of the 
corporation, but not for their own. The major protection is from liability for 
torts committed by other agents (e.g., the truck driver who negligently runs 
over a pedestrian) and from liability on contracts (though often the other 
party will insist on a personal guaranty of performance, as with many loan 
agreements). For a simple discussion of this from a California point of view, 
see http://www.centurycitybar.com/newslettertemplate/April11/article3.htm.

Of course, the issue here is moral responsibility, not legal responsibility. 
But it's still important to see that the use of the corporate form is not the 
get out of jail free card that it is being portrayed as.

Prof. Greenwood's use of terms like "theft" and "fraud" is not helpful in 
moving our discussion forward, nor is his invocation of that boogeyman of the 
law -- Lochner. And the business judgment rule has nothing to do with 
obligations to third parties, as opposed to potential liability to the 
corporation itself and to its shareholders

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Jun 11, 2014, at 1:58 PM, "Daniel J. Greenwood" 
mailto:daniel.greenw...@hofstra.edu>> wrote:


I think this is not a correct statement of corporate law.



The owners of a closely held corporation are morally responsible for the 
corporation's actions.  After all, the shareholders (or the trustees) are the 
voters for the board that is the corporation's ultimate decisionmaker, and if 
the shareholders are able to act unanimously, they can call an election at any 
time, so that, functionally if not legally, the directors serve at their 
pleasure.  So the Greens are correct to feel responsible for Hobby Lobby's 
actions in their beneficiary of the shareholder trust role.  (If I understand 
the facts correctly, they are also directors of the firm.  In that role, they 
have actual control, within the constraints of fiduciary duty, and certainly 
are morally responsible for their actions.)



However, the main point of corporate status is that the shareholders are not 
legally responsible for the corporation's actions. This is almost certainly why 
the Greens chose to organize the firm as a corporation.  If Hobby Lobby poisons 
its customers or employees or neighbors, or if it attempts to sell products 
that no one is willing to buy, the shareholders have no legal obligation at 
all.  The corporation, to be sure, is liable for its torts and contracts.  But 
if the default is large enough to leave the corporation insolvent, the victims 
are out of luck.  The shareholders have no obligation to pay corporate 
obligations, to fund the corporation adequately, to replenish its capital or to 
return dividends or other payments it may have made to them in the past 
(assuming they were proper when made).



Moreover, the shareholders, as shareholders, have no responsibility at all for 
the actions of directors they elected or employees the directors hired, even if 
the shareholder knew, or should have know, the directors were acting in 
violation of their fiduciary duties.



The only time the shareholders are legally responsible for the corporation's 
actions is if they di

RE: Simple Hobby Lobby question

[Daniel J. Greenwood]

Corporate law is clear.  Hobby Lobby’s assets do not belong to the Greens and 
they are forbidden by law from acting as if they owned them.  This is true in 
each of their corporate roles.

So either they are claiming that their own religious exercise is burdened 
because they are not allowed to use property not their own in violation of law 
– in which case, Free Exercise is burdened by the ordinary rules of property, 
theft and fraud.   How is their claim different from a claim that Hobby Lobby 
need not pay its suppliers or label its goods honestly, because they prefer to 
maximize profits in order to use the corporation’s funds for religious purposes?

Or they are claiming that the corporation’s exercise rights are burdened, in 
which case they have transformed the Free Exercise clause into an endorsement 
of Establishment:

Granting Exercise rights to an organization is the same as allowing the 
organization’s leaders to impose the leaders’ religious views on followers.  In 
my view, this is the simplest way to understand what the Greens are demanding 
here -- they seek to establish their religious views in Hobby Lobby, coercively 
requiring all Hobby Lobby employees to set aside personal views in favor of the 
institutional view.

This is not a Free Exercise claim at all.  It’s just a question of corporate 
law – does corporate law grant the executives, directors, shareholders or trust 
beneficiaries the right to establish a corporate religion and impose it, 
through contract and agency, on employees?   Corporate law is clear that 
neither shareholders nor trust beneficiaries have any such right.  It is less 
clear about executives and directors.  I’m no Free Exercise expert, but I don’t 
see how the right to impose your religion on others – whether protected by 
state corporate law or not, and however modified by Federal limitations on the 
rights of employers – could be a Free Exercise right, and or limiting it a 
burden on Free Exercise.


From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Wednesday, June 11, 2014 5:09 PM
To: Daniel J. Greenwood; 'Law & Religion issues for Law Academics'
Subject: RE: Simple Hobby Lobby question

In the RFRA context, moral responsibility is what we’re talking about. The 
Green’s religious exercise is burdened because they are being required to 
violate the moral obligations of their faith.

I agree about the effects of limited liability in tort and contract. I should 
have been more clear that, as the child porn example suggested, that I was 
thinking of criminal responsibility. An individual cannot insulate himself from 
criminal prosecution by setting up a corporation that he wholly controls and 
then causing the corporation to violate the law. There are also non-criminal 
regulatory examples, such as the liability of controlling shareholders under 
the securities laws.

I am no expert in these areas and can’t cite you a string of cases, although I 
could cite a few. But a closely held corporation is not a get-out-of-jail-free 
card. And it doesn’t really matter whether the government says the controlling 
individuals are liable for what the corporation did, because they controlled 
it, or are liable for what they did individually in their roles as 
shareholders, directors, or officers. Either way you formulate it would be 
equally applicable to the Greens.

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

From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu]
Sent: Wednesday, June 11, 2014 4:55 PM
To: Douglas Laycock; Law & Religion issues for Law Academics
Subject: RE: Simple Hobby Lobby question


I think this is not a correct statement of corporate law.



The owners of a closely held corporation are morally responsible for the 
corporation's actions.  After all, the shareholders (or the trustees) are the 
voters for the board that is the corporation's ultimate decisionmaker, and if 
the shareholders are able to act unanimously, they can call an election at any 
time, so that, functionally if not legally, the directors serve at their 
pleasure.  So the Greens are correct to feel responsible for Hobby Lobby's 
actions in their beneficiary of the shareholder trust role.  (If I understand 
the facts correctly, they are also directors of the firm.  In that role, they 
have actual control, within the constraints of fiduciary duty, and certainly 
are morally responsible for their actions.)



However, the main point of corporate status is that the shareholders are not 
legally responsible for the corporation's actions. This is almost certainly why 
the Greens chose to organize the firm as a corporation.  If Hobby Lobby poisons 
its customers or employees or neighbors, or if it attempts to sell products 
that no one is willing to buy, the shareholders have no legal obligation at 
all.  The corporatio

Re: Simple Hobby Lobby question

[Scarberry, Mark]

gal responsibility.



Note that the Greens' decision to adopt corporate form was entirely voluntary 
and the directors and shareholders may reverse it at any time.  If they want to 
be legally responsible for the actions of their firm, they need only organize 
as a partnership.



In this case, they appear to be attempting to be a corporation when it is to 
their advantage – that is, they have organized it as a corporation with the 
shares held by a trust in order to establish that they are NOT responsible for 
the corporation’s torts, contracts, taxes or violations of law.  But at the 
same time, they want to ignore the corporation when that is to their advantage, 
claiming that the corporation’s actions to purchase health insurance are their 
actions or made with their money, as if the corporation didn’t exist at all.  
There is something quite wrong about a plaintiff, having taken advantage of the 
extraordinary privilege of irresponsibility, then turning around and saying, in 
effect, “never mind, right now and for this purpose only, I want to be 
responsible – but only so long as it helps me.”



If this were a corporate law case instead of a constitutional law case, that 
two-sidedness would be clear evidence of fraud and a basis to conclude that the 
corporation doesn’t really exist at all – to pierce the corporate veil and 
disregard corporate form.





-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Tuesday, June 10, 2014 10:23 PM
To: Law & Religion issues for Law Academics; Daniel J. Greenwood
Subject: Re: Simple Hobby Lobby question



The thoughts below may well be right for a corporation with religiously diverse 
ownership. But Hobby Lobby is closely held, with a voting trust created in part 
to ensure that the business would be run consistently with the family's 
religious commitments.



In public opinion, and often in law, we hold controlling shareholders morally 
and often legally responsible for the wrongdoing of the corporation. It is 
hardly unusual or counter normative for the Greens to feel morally responsible 
for what they do with the corporation's money.



If their bookstore affiliate were selling child porn instead of Christian 
books, we would hardly excuse the owners who made all the decisions for the 
corporation on the ground that it wasn't them that did it, it was the 
corporation.



___
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RE: Simple Hobby Lobby question

[Daniel J. Greenwood]

The directors’ fiduciary duty is owed to the corporation, even if it is 
unenforceable (because the shareholders will refuse to enforce it).

And Marty is correct that the directors do decide what the corporation’s 
interests are.  But there are limits – but they may not decide that their 
personal interests are the firm’s interests or that the firm’s interests are 
promoted by violating the law (that second point is somewhat controversial).

If the firm has no religion, it has no religious interests.  So the directors 
are acting in violation of their duty if they cause the corporation to act in 
accord with their own religious views at the expense of its interests (for 
example:  paying hard cash to lawyers in this case).

The First Amendment, I’d have thought, does not protect fiduciaries who seek to 
use  money not their own to pursue the fiduciary’s values and interests in 
violation of their trust.   There may be Freedom of Religion interests in 
stealing, but they are smaller than the social interest in maintaining the 
ordinary rules of civilization and property.

If, as Richard D says, it is in the corporation’s financial interest to follow 
its customer’s views – that is a purely financial interest, not a religious 
one.  Lochner might protect the firm’s interest in profit-maximization 
regardless of the rules of the marketplace laid down by the legislature.  The 
Free Exercise clause surely does not.

From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Tuesday, June 10, 2014 11:20 PM
To: Law & Religion issues for Law Academics
Cc: Daniel J. Greenwood
Subject: Re: Simple Hobby Lobby question

Lord knows Doug and I have plenty of differences on this case, but on this one 
we agree, at least roughly speaking.  The directors may have a duty to act in 
the corporations' interests . . . but they are also the ones here who decide 
what those interests are.  There are no stockholders to whom they owe a 
fiduciary duty.  Accordingly, if they freely chose to run the corporation in a 
way that violated their own religious tenets, well, then, they would have 
violated their religious tenets.
The real problem in this respect for the Greens is that they have few if any 
decisions to make here -- the preventive services are required by law if the 
Greens choose for HL to offer an employee insurance plan.
However, as I've been stressing, they do have to decide whether HL will provide 
a health plan at all . . . and that decision might implicate their perceived 
religious obligations.
More to this effect toward the end of my post:

http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html


On Tue, Jun 10, 2014 at 10:23 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
The thoughts below may well be right for a corporation with religiously diverse 
ownership. But Hobby Lobby is closely held, with a voting trust created in part 
to ensure that the business would be run consistently with the family's 
religious commitments.

In public opinion, and often in law, we hold controlling shareholders morally 
and often legally responsible for the wrongdoing of the corporation. It is 
hardly unusual or counter normative for the Greens to feel morally responsible 
for what they do with the corporation's money.

If their bookstore affiliate were selling child porn instead of Christian 
books, we would hardly excuse the owners who made all the decisions for the 
corporation on the ground that it wasn't them that did it, it was the 
corporation.

On Wed, 11 Jun 2014 00:53:05 +
 "Daniel J. Greenwood" 
mailto:daniel.greenw...@hofstra.edu>> wrote:
>Surely directors have a fiduciary duty as a matter of state law to set aside 
>their personal beliefs and act in the interests of the corporation – not their 
>own souls – according to their best professional judgment.
>
>It would be strange indeed to discover that the First Amendment nationalizes 
>and constitutionalizes basic aspects of corporate law, barring corporate law 
>from requiring directors to act as fiduciaries.
>
>It would be stranger still to discover that directors have a right to spend 
>money that is not theirs -- wealth that was created by the work of the 
>employees mixed with the capital of shareholders, lenders and past employee 
>work – for their own purposes rather than the corporations.  That’s theft.  
>Does the First Amendment really protect theft?
>
>Directors act for the corporation.  If the corporation cannot exercise 
>religion, they have no right to cause it to spend (or not spend) money or 
>violate otherwise applicable law in order to practice their personal religions.
>
>On the other hand, if the corporation can exercise religion, they have an 
>obligation to cause it to do so whenever it is in its interest to do so – 
>which, I suppose, means whenever in their professional judgment doing so would 

RE: Simple Hobby Lobby question

[Douglas Laycock]

In the RFRA context, moral responsibility is what we’re talking about. The 
Green’s religious exercise is burdened because they are being required to 
violate the moral obligations of their faith.

 

I agree about the effects of limited liability in tort and contract. I should 
have been more clear that, as the child porn example suggested, that I was 
thinking of criminal responsibility. An individual cannot insulate himself from 
criminal prosecution by setting up a corporation that he wholly controls and 
then causing the corporation to violate the law. There are also non-criminal 
regulatory examples, such as the liability of controlling shareholders under 
the securities laws. 

 

I am no expert in these areas and can’t cite you a string of cases, although I 
could cite a few. But a closely held corporation is not a get-out-of-jail-free 
card. And it doesn’t really matter whether the government says the controlling 
individuals are liable for what the corporation did, because they controlled 
it, or are liable for what they did individually in their roles as 
shareholders, directors, or officers. Either way you formulate it would be 
equally applicable to the Greens.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: Daniel J. Greenwood [mailto:daniel.greenw...@hofstra.edu] 
Sent: Wednesday, June 11, 2014 4:55 PM
To: Douglas Laycock; Law & Religion issues for Law Academics
Subject: RE: Simple Hobby Lobby question

 

I think this is not a correct statement of corporate law.  

 

The owners of a closely held corporation are morally responsible for the 
corporation's actions.  After all, the shareholders (or the trustees) are the 
voters for the board that is the corporation's ultimate decisionmaker, and if 
the shareholders are able to act unanimously, they can call an election at any 
time, so that, functionally if not legally, the directors serve at their 
pleasure.  So the Greens are correct to feel responsible for Hobby Lobby's 
actions in their beneficiary of the shareholder trust role.  (If I understand 
the facts correctly, they are also directors of the firm.  In that role, they 
have actual control, within the constraints of fiduciary duty, and certainly 
are morally responsible for their actions.) 

 

However, the main point of corporate status is that the shareholders are not 
legally responsible for the corporation's actions. This is almost certainly why 
the Greens chose to organize the firm as a corporation.  If Hobby Lobby poisons 
its customers or employees or neighbors, or if it attempts to sell products 
that no one is willing to buy, the shareholders have no legal obligation at 
all.  The corporation, to be sure, is liable for its torts and contracts.  But 
if the default is large enough to leave the corporation insolvent, the victims 
are out of luck.  The shareholders have no obligation to pay corporate 
obligations, to fund the corporation adequately, to replenish its capital or to 
return dividends or other payments it may have made to them in the past 
(assuming they were proper when made).  

 

Moreover, the shareholders, as shareholders, have no responsibility at all for 
the actions of directors they elected or employees the directors hired, even if 
the shareholder knew, or should have know, the directors were acting in 
violation of their fiduciary duties.  

 

The only time the shareholders are legally responsible for the corporation's 
actions is if they disregard corporate form -- for example, by seeking to 
control the corporation in their shareholder role, by extracting funds from it 
in violation of corporate law, or by treating corporate assets as their own.   

 

Similarly, directors ordinarily are also immune from legal responsibility for 
their actions, even if those actions wrong another.  The victims must sue the 
corporation, and the corporation alone.  The corporation would have a 
claim-over against the directors if they violated their fiduciary duty, but 
under the business judgment rule the directors are not liable for ordinary 
negligence or for mistakes of judgment.  More importantly, only the directors 
or the shareholders have standing to bring this suit – so it is irrelevant in a 
closely held corporation where the directors and the shareholders have a 
unified interest.  

 

In short, the primary reason to organize as a close corporation is to avoid 
legal responsibility.  

 

Note that the Greens' decision to adopt corporate form was entirely voluntary 
and the directors and shareholders may reverse it at any time.  If they want to 
be legally responsible for the actions of their firm, they need only organize 
as a partnership.   

 

In this case, they appear to be attempting to be a corporation when it is to 
their advantage – that is, they have organized it as a corporation w

RE: Simple Hobby Lobby question

[Daniel J. Greenwood]

I think this is not a correct statement of corporate law.



The owners of a closely held corporation are morally responsible for the 
corporation's actions.  After all, the shareholders (or the trustees) are the 
voters for the board that is the corporation's ultimate decisionmaker, and if 
the shareholders are able to act unanimously, they can call an election at any 
time, so that, functionally if not legally, the directors serve at their 
pleasure.  So the Greens are correct to feel responsible for Hobby Lobby's 
actions in their beneficiary of the shareholder trust role.  (If I understand 
the facts correctly, they are also directors of the firm.  In that role, they 
have actual control, within the constraints of fiduciary duty, and certainly 
are morally responsible for their actions.)



However, the main point of corporate status is that the shareholders are not 
legally responsible for the corporation's actions. This is almost certainly why 
the Greens chose to organize the firm as a corporation.  If Hobby Lobby poisons 
its customers or employees or neighbors, or if it attempts to sell products 
that no one is willing to buy, the shareholders have no legal obligation at 
all.  The corporation, to be sure, is liable for its torts and contracts.  But 
if the default is large enough to leave the corporation insolvent, the victims 
are out of luck.  The shareholders have no obligation to pay corporate 
obligations, to fund the corporation adequately, to replenish its capital or to 
return dividends or other payments it may have made to them in the past 
(assuming they were proper when made).



Moreover, the shareholders, as shareholders, have no responsibility at all for 
the actions of directors they elected or employees the directors hired, even if 
the shareholder knew, or should have know, the directors were acting in 
violation of their fiduciary duties.



The only time the shareholders are legally responsible for the corporation's 
actions is if they disregard corporate form -- for example, by seeking to 
control the corporation in their shareholder role, by extracting funds from it 
in violation of corporate law, or by treating corporate assets as their own.



Similarly, directors ordinarily are also immune from legal responsibility for 
their actions, even if those actions wrong another.  The victims must sue the 
corporation, and the corporation alone.  The corporation would have a 
claim-over against the directors if they violated their fiduciary duty, but 
under the business judgment rule the directors are not liable for ordinary 
negligence or for mistakes of judgment.  More importantly, only the directors 
or the shareholders have standing to bring this suit – so it is irrelevant in a 
closely held corporation where the directors and the shareholders have a 
unified interest.



In short, the primary reason to organize as a close corporation is to avoid 
legal responsibility.



Note that the Greens' decision to adopt corporate form was entirely voluntary 
and the directors and shareholders may reverse it at any time.  If they want to 
be legally responsible for the actions of their firm, they need only organize 
as a partnership.



In this case, they appear to be attempting to be a corporation when it is to 
their advantage – that is, they have organized it as a corporation with the 
shares held by a trust in order to establish that they are NOT responsible for 
the corporation’s torts, contracts, taxes or violations of law.  But at the 
same time, they want to ignore the corporation when that is to their advantage, 
claiming that the corporation’s actions to purchase health insurance are their 
actions or made with their money, as if the corporation didn’t exist at all.  
There is something quite wrong about a plaintiff, having taken advantage of the 
extraordinary privilege of irresponsibility, then turning around and saying, in 
effect, “never mind, right now and for this purpose only, I want to be 
responsible – but only so long as it helps me.”



If this were a corporate law case instead of a constitutional law case, that 
two-sidedness would be clear evidence of fraud and a basis to conclude that the 
corporation doesn’t really exist at all – to pierce the corporate veil and 
disregard corporate form.





-Original Message-
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Tuesday, June 10, 2014 10:23 PM
To: Law & Religion issues for Law Academics; Daniel J. Greenwood
Subject: Re: Simple Hobby Lobby question



The thoughts below may well be right for a corporation with religiously diverse 
ownership. But Hobby Lobby is closely held, with a voting trust created in part 
to ensure that the business would be run consistently with the family's 
religious commitments.



In public opinion, and often in law, we hold controlling shareholders morally 
and often legally responsible for the wrongdoing of the corporation. It 

Re: Simple Hobby Lobby question

[Richard Dougherty]

I would add that it is likely that Hobby Lobby is acting in the interests
of the corporation in this instance, including the fiduciary interest;
scores of people shop at Hobby Lobby because they like what it stands for.
 Take that away, or make it seem as if they have abandoned it, and it can't
help Hobby Lobby's marketing (see the Boy Scouts).

Richard Dougherty
University of Dallas


On Tue, Jun 10, 2014 at 9:23 PM, Douglas Laycock 
wrote:

> The thoughts below may well be right for a corporation with religiously
> diverse ownership. But Hobby Lobby is closely held, with a voting trust
> created in part to ensure that the business would be run consistently with
> the family's religious commitments.
>
> In public opinion, and often in law, we hold controlling shareholders
> morally and often legally responsible for the wrongdoing of the
> corporation. It is hardly unusual or counter normative for the Greens to
> feel morally responsible for what they do with the corporation's money.
>
> If their bookstore affiliate were selling child porn instead of Christian
> books, we would hardly excuse the owners who made all the decisions for the
> corporation on the ground that it wasn't them that did it, it was the
> corporation.
>
> On Wed, 11 Jun 2014 00:53:05 +
>  "Daniel J. Greenwood"  wrote:
> >Surely directors have a fiduciary duty as a matter of state law to set
> aside their personal beliefs and act in the interests of the corporation –
> not their own souls – according to their best professional judgment.
> >
> >It would be strange indeed to discover that the First Amendment
> nationalizes and constitutionalizes basic aspects of corporate law, barring
> corporate law from requiring directors to act as fiduciaries.
> >
> >It would be stranger still to discover that directors have a right to
> spend money that is not theirs -- wealth that was created by the work of
> the employees mixed with the capital of shareholders, lenders and past
> employee work – for their own purposes rather than the corporations.
>  That’s theft.  Does the First Amendment really protect theft?
> >
> >Directors act for the corporation.  If the corporation cannot exercise
> religion, they have no right to cause it to spend (or not spend) money or
> violate otherwise applicable law in order to practice their personal
> religions.
> >
> >On the other hand, if the corporation can exercise religion, they have an
> obligation to cause it to do so whenever it is in its interest to do so –
> which, I suppose, means whenever in their professional judgment doing so
> would protect its soul, or if it has no soul, whenever its earthly
> interests will be furthered by religious practice.  Moreover, if the First
> Amendment protects the corporation’s religious rights, ordinary corporate
> law suggests that the directors are obliged to cause it to practice
> whatever religion will result in promoting those interests.  This might
> mean, for example, choosing the religion that maximizes profit in some
> sense, or that promotes the corporation’s product.
> >
> >Directors have a great deal of freedom to determine what the
> corporation’s interests are.   But as a matter of corporate law, they have
> no right to substitute their own values for its interests.
> >
> >Again, it seems bizarre to hold that the First Amendment protection of
> freedom of religion protects directors in their fiduciary role:  by
> assuming the role of fiduciary, they have given up their freedom to act
> according to their personal consciences.
> >
> >Switching the analysis to RFRA helps slightly – at least corporate law
> does not become a part of First Amendment law.  But it is still quite
> implausible that the Congress meant to nationalize a traditionally state
> law area without explicit consideration of the implications.
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: Simple Hobby Lobby question

[Marty Lederman]

Lord knows Doug and I have plenty of differences on this case, but on this
one we agree, at least roughly speaking.  The directors may have a duty to
act in the corporations' interests . . . but they are also the ones here
who decide what those interests are.  There are no stockholders to whom
they owe a fiduciary duty.  Accordingly, if they freely chose to run the
corporation in a way that violated their own religious tenets, well, then,
they would have violated their religious tenets.

The real problem in this respect for the Greens is that they have few if
any decisions to make here -- the preventive services are required *by law*
if the Greens choose for HL to offer an employee insurance plan.

However, as I've been stressing, they *do* have to decide whether HL will
provide a health plan at all . . . and *that *decision might implicate
their perceived religious obligations.

More to this effect toward the end of my post:

http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html




On Tue, Jun 10, 2014 at 10:23 PM, Douglas Laycock 
wrote:

> The thoughts below may well be right for a corporation with religiously
> diverse ownership. But Hobby Lobby is closely held, with a voting trust
> created in part to ensure that the business would be run consistently with
> the family's religious commitments.
>
> In public opinion, and often in law, we hold controlling shareholders
> morally and often legally responsible for the wrongdoing of the
> corporation. It is hardly unusual or counter normative for the Greens to
> feel morally responsible for what they do with the corporation's money.
>
> If their bookstore affiliate were selling child porn instead of Christian
> books, we would hardly excuse the owners who made all the decisions for the
> corporation on the ground that it wasn't them that did it, it was the
> corporation.
>
> On Wed, 11 Jun 2014 00:53:05 +
>  "Daniel J. Greenwood"  wrote:
> >Surely directors have a fiduciary duty as a matter of state law to set
> aside their personal beliefs and act in the interests of the corporation –
> not their own souls – according to their best professional judgment.
> >
> >It would be strange indeed to discover that the First Amendment
> nationalizes and constitutionalizes basic aspects of corporate law, barring
> corporate law from requiring directors to act as fiduciaries.
> >
> >It would be stranger still to discover that directors have a right to
> spend money that is not theirs -- wealth that was created by the work of
> the employees mixed with the capital of shareholders, lenders and past
> employee work – for their own purposes rather than the corporations.
>  That’s theft.  Does the First Amendment really protect theft?
> >
> >Directors act for the corporation.  If the corporation cannot exercise
> religion, they have no right to cause it to spend (or not spend) money or
> violate otherwise applicable law in order to practice their personal
> religions.
> >
> >On the other hand, if the corporation can exercise religion, they have an
> obligation to cause it to do so whenever it is in its interest to do so –
> which, I suppose, means whenever in their professional judgment doing so
> would protect its soul, or if it has no soul, whenever its earthly
> interests will be furthered by religious practice.  Moreover, if the First
> Amendment protects the corporation’s religious rights, ordinary corporate
> law suggests that the directors are obliged to cause it to practice
> whatever religion will result in promoting those interests.  This might
> mean, for example, choosing the religion that maximizes profit in some
> sense, or that promotes the corporation’s product.
> >
> >Directors have a great deal of freedom to determine what the
> corporation’s interests are.   But as a matter of corporate law, they have
> no right to substitute their own values for its interests.
> >
> >Again, it seems bizarre to hold that the First Amendment protection of
> freedom of religion protects directors in their fiduciary role:  by
> assuming the role of fiduciary, they have given up their freedom to act
> according to their personal consciences.
> >
> >Switching the analysis to RFRA helps slightly – at least corporate law
> does not become a part of First Amendment law.  But it is still quite
> implausible that the Congress meant to nationalize a traditionally state
> law area without explicit consideration of the implications.
> >From: Marty Lederman [mailto:lederman.ma...@gmail.com]
> >Sent: Monday, June 09, 2014 5:52 PM
> >To: Law & Religion issues for Law Academics
> >Subject: Re: Simple Hobby Lobby question
> >
> >I actually think the "can corporati

Re: Simple Hobby Lobby question

[Douglas Laycock]

The thoughts below may well be right for a corporation with religiously diverse 
ownership. But Hobby Lobby is closely held, with a voting trust created in part 
to ensure that the business would be run consistently with the family's 
religious commitments.

In public opinion, and often in law, we hold controlling shareholders morally 
and often legally responsible for the wrongdoing of the corporation. It is 
hardly unusual or counter normative for the Greens to feel morally responsible 
for what they do with the corporation's money. 

If their bookstore affiliate were selling child porn instead of Christian 
books, we would hardly excuse the owners who made all the decisions for the 
corporation on the ground that it wasn't them that did it, it was the 
corporation.

On Wed, 11 Jun 2014 00:53:05 +
 "Daniel J. Greenwood"  wrote:
>Surely directors have a fiduciary duty as a matter of state law to set aside 
>their personal beliefs and act in the interests of the corporation – not their 
>own souls – according to their best professional judgment.
>
>It would be strange indeed to discover that the First Amendment nationalizes 
>and constitutionalizes basic aspects of corporate law, barring corporate law 
>from requiring directors to act as fiduciaries.
>
>It would be stranger still to discover that directors have a right to spend 
>money that is not theirs -- wealth that was created by the work of the 
>employees mixed with the capital of shareholders, lenders and past employee 
>work – for their own purposes rather than the corporations.  That’s theft.  
>Does the First Amendment really protect theft?
>
>Directors act for the corporation.  If the corporation cannot exercise 
>religion, they have no right to cause it to spend (or not spend) money or 
>violate otherwise applicable law in order to practice their personal religions.
>
>On the other hand, if the corporation can exercise religion, they have an 
>obligation to cause it to do so whenever it is in its interest to do so – 
>which, I suppose, means whenever in their professional judgment doing so would 
>protect its soul, or if it has no soul, whenever its earthly interests will be 
>furthered by religious practice.  Moreover, if the First Amendment protects 
>the corporation’s religious rights, ordinary corporate law suggests that the 
>directors are obliged to cause it to practice whatever religion will result in 
>promoting those interests.  This might mean, for example, choosing the 
>religion that maximizes profit in some sense, or that promotes the 
>corporation’s product.
>
>Directors have a great deal of freedom to determine what the corporation’s 
>interests are.   But as a matter of corporate law, they have no right to 
>substitute their own values for its interests.
>
>Again, it seems bizarre to hold that the First Amendment protection of freedom 
>of religion protects directors in their fiduciary role:  by assuming the role 
>of fiduciary, they have given up their freedom to act according to their 
>personal consciences.
>
>Switching the analysis to RFRA helps slightly – at least corporate law does 
>not become a part of First Amendment law.  But it is still quite implausible 
>that the Congress meant to nationalize a traditionally state law area without 
>explicit consideration of the implications.
>From: Marty Lederman [mailto:lederman.ma...@gmail.com]
>Sent: Monday, June 09, 2014 5:52 PM
>To: Law & Religion issues for Law Academics
>Subject: Re: Simple Hobby Lobby question
>
>I actually think the "can corporations exercise religion?" question is a red 
>herring.  As is the "shareholder right-to-sue" question.  The gist of the 
>claims in these cases are that the individual plaintiffs, the Hanhs and the 
>Greens, have had their religious exercise burdened in their capacities as 
>company directors.  I think the Court will vote 9-0 on the question of whether 
>someone can sue under RFRA in these circumstances.  (I think that someone 
>ought to be the Greens and Hahns in their "director" capacities; but whatever 
>the theory, I doubt any Justice will vote to throw out the cases at the 
>"threshold.")
>
>The real question at stake in the cases is whether actors in the commercial 
>sphere (corporate or not) should ever be able to prevail on the merits when 
>granting them a religious exemption would mean significantly burdening third 
>parties (competitors, customers, or, as here, employees).  The answer to that 
>question has been a resounding "no" for virtually the entire history of 
>FEC/RFRA jurisprudence, going back 70 years.  It's that tradition that is at 
>stake.
>I have a bunch of posts on these and related questions if anyone's intere

RE: Simple Hobby Lobby question

[Daniel J. Greenwood]

Surely directors have a fiduciary duty as a matter of state law to set aside 
their personal beliefs and act in the interests of the corporation – not their 
own souls – according to their best professional judgment.

It would be strange indeed to discover that the First Amendment nationalizes 
and constitutionalizes basic aspects of corporate law, barring corporate law 
from requiring directors to act as fiduciaries.

It would be stranger still to discover that directors have a right to spend 
money that is not theirs -- wealth that was created by the work of the 
employees mixed with the capital of shareholders, lenders and past employee 
work – for their own purposes rather than the corporations.  That’s theft.  
Does the First Amendment really protect theft?

Directors act for the corporation.  If the corporation cannot exercise 
religion, they have no right to cause it to spend (or not spend) money or 
violate otherwise applicable law in order to practice their personal religions.

On the other hand, if the corporation can exercise religion, they have an 
obligation to cause it to do so whenever it is in its interest to do so – 
which, I suppose, means whenever in their professional judgment doing so would 
protect its soul, or if it has no soul, whenever its earthly interests will be 
furthered by religious practice.  Moreover, if the First Amendment protects the 
corporation’s religious rights, ordinary corporate law suggests that the 
directors are obliged to cause it to practice whatever religion will result in 
promoting those interests.  This might mean, for example, choosing the religion 
that maximizes profit in some sense, or that promotes the corporation’s product.

Directors have a great deal of freedom to determine what the corporation’s 
interests are.   But as a matter of corporate law, they have no right to 
substitute their own values for its interests.

Again, it seems bizarre to hold that the First Amendment protection of freedom 
of religion protects directors in their fiduciary role:  by assuming the role 
of fiduciary, they have given up their freedom to act according to their 
personal consciences.

Switching the analysis to RFRA helps slightly – at least corporate law does not 
become a part of First Amendment law.  But it is still quite implausible that 
the Congress meant to nationalize a traditionally state law area without 
explicit consideration of the implications.
From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Monday, June 09, 2014 5:52 PM
To: Law & Religion issues for Law Academics
Subject: Re: Simple Hobby Lobby question

I actually think the "can corporations exercise religion?" question is a red 
herring.  As is the "shareholder right-to-sue" question.  The gist of the 
claims in these cases are that the individual plaintiffs, the Hanhs and the 
Greens, have had their religious exercise burdened in their capacities as 
company directors.  I think the Court will vote 9-0 on the question of whether 
someone can sue under RFRA in these circumstances.  (I think that someone ought 
to be the Greens and Hahns in their "director" capacities; but whatever the 
theory, I doubt any Justice will vote to throw out the cases at the 
"threshold.")

The real question at stake in the cases is whether actors in the commercial 
sphere (corporate or not) should ever be able to prevail on the merits when 
granting them a religious exemption would mean significantly burdening third 
parties (competitors, customers, or, as here, employees).  The answer to that 
question has been a resounding "no" for virtually the entire history of 
FEC/RFRA jurisprudence, going back 70 years.  It's that tradition that is at 
stake.
I have a bunch of posts on these and related questions if anyone's interested:

http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html
On the points discussed immediately above, see, e.g.:

http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html

http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html

http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/

http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html

On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin 
mailto:hillelle...@gmail.com>> wrote:
Ah. Silly me. Thank you.

On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper 
mailto:lip...@au.org>> wrote:
The question isn’t only whether Hobby Lobby (and other for-profit corporations 
that sell secular goods/services) are persons, but rather whether they are 
persons that “exercise religion.” If they are not exercising religion, then 
RFRA is not triggered, no matter how much personhood they have.



On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin 
mailto:hillelle...@gmail.com>> wrote:

> Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby 
> (wheth

Re: Simple Hobby Lobby question

[Marty Lederman]

I actually think the "can corporations exercise religion?" question is a
red herring.  As is the "shareholder right-to-sue" question.  The gist of
the claims in these cases are that the individual plaintiffs, the Hanhs and
the Greens, have had their religious exercise burdened in *their capacities
as company directors*.  I think the Court will vote 9-0 on the question of
whether *someone* can sue under RFRA in these circumstances.  (I think that
someone ought to be the Greens and Hahns in their "director" capacities;
but whatever the theory, I doubt any Justice will vote to throw out the
cases at the "threshold.")

The real question at stake in the cases is whether actors in the commercial
sphere (corporate or not) should ever be able to prevail on the merits when
granting them a religious exemption would mean significantly burdening
third parties (competitors, customers, or, as here, employees).  The answer
to *that *question has been a resounding "no" for virtually the entire
history of FEC/RFRA jurisprudence, going back 70 years.  It's that
tradition that is at stake.

I have a bunch of posts on these and related questions if anyone's
interested:

http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html

On the points discussed immediately above, see, e.g.:

http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html

http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html

http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/

http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html



On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin 
wrote:

> Ah. Silly me. Thank you.
>
>
> On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper  wrote:
>
>> The question isn’t only whether Hobby Lobby (and other for-profit
>> corporations that sell secular goods/services) are persons, but rather
>> whether they are persons that “exercise religion.” If they are not
>> exercising religion, then RFRA is not triggered, no matter how much
>> personhood they have.
>>
>>
>>
>> On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin 
>> wrote:
>>
>> > Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby
>> Lobby (whether RFRA applies to corporations)? "[T]he words “person” and
>> “whoever” include corporations, companies, associations, firms,
>> partnerships, societies, and joint stock companies, as well as individuals."
>> >
>> > Are the two sides really just arguing about whether [RFRA's] "context
>> indicates otherwise"  (1 USC 1) sufficiently to overcome this strong
>> definitional statement?
>> >
>> > If so, much as I'd personally like for Hobby Lobby to lose this case,
>> I'd think that the on this question at least, the plaintiffs have to win.
>> After all, we have a strong statutory definition, with at best equivocal
>> contextual evidence to the contrary.
>> >
>> > What am I missing? Are there cases dealing with the "context" language
>> in 1 USC 1?
>> > ___
>> > To post, send message to Religionlaw@lists.ucla.edu
>> > To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>> >
>> > Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>
>
>
> --
> Hillel Y. Levin
> Associate Professor
> University of Georgia
> School of Law
> 120 Herty Dr.
> Athens, GA 30602
> (678) 641-7452
> hle...@uga.edu
> hillelle...@gmail.com
> SSRN Author Page:
> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645
>
> ___
> 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.
>
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To subscribe, unsubscribe, change options, or get password, see 
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Re: Simple Hobby Lobby question

[Hillel Y. Levin]

Ah. Silly me. Thank you.


On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper  wrote:

> The question isn’t only whether Hobby Lobby (and other for-profit
> corporations that sell secular goods/services) are persons, but rather
> whether they are persons that “exercise religion.” If they are not
> exercising religion, then RFRA is not triggered, no matter how much
> personhood they have.
>
>
>
> On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin 
> wrote:
>
> > Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby
> (whether RFRA applies to corporations)? "[T]he words “person” and “whoever”
> include corporations, companies, associations, firms, partnerships,
> societies, and joint stock companies, as well as individuals."
> >
> > Are the two sides really just arguing about whether [RFRA's] "context
> indicates otherwise"  (1 USC 1) sufficiently to overcome this strong
> definitional statement?
> >
> > If so, much as I'd personally like for Hobby Lobby to lose this case,
> I'd think that the on this question at least, the plaintiffs have to win.
> After all, we have a strong statutory definition, with at best equivocal
> contextual evidence to the contrary.
> >
> > What am I missing? Are there cases dealing with the "context" language
> in 1 USC 1?
> > ___
> > To post, send message to Religionlaw@lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>



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

[Greg Lipper]

The question isn’t only whether Hobby Lobby (and other for-profit corporations 
that sell secular goods/services) are persons, but rather whether they are 
persons that “exercise religion.” If they are not exercising religion, then 
RFRA is not triggered, no matter how much personhood they have.



On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin  wrote:

> Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby 
> (whether RFRA applies to corporations)? "[T]he words “person” and “whoever” 
> include corporations, companies, associations, firms, partnerships, 
> societies, and joint stock companies, as well as individuals."
> 
> Are the two sides really just arguing about whether [RFRA's] "context 
> indicates otherwise"  (1 USC 1) sufficiently to overcome this strong 
> definitional statement?
> 
> If so, much as I'd personally like for Hobby Lobby to lose this case, I'd 
> think that the on this question at least, the plaintiffs have to win. After 
> all, we have a strong statutory definition, with at best equivocal contextual 
> evidence to the contrary.
> 
> What am I missing? Are there cases dealing with the "context" language in 1 
> USC 1?
> ___
> 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.

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Simple Hobby Lobby question

[Hillel Y. Levin]

Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby
(whether RFRA applies to corporations)? "[T]he words “person” and “whoever”
include corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as well as individuals."

Are the two sides really just arguing about whether [RFRA's] "context
indicates otherwise"  (1 USC 1) sufficiently to overcome this strong
definitional statement?

If so, much as I'd personally like for Hobby Lobby to lose this case, I'd
think that the on this question at least, the plaintiffs have to win. After
all, we have a strong statutory definition, with at best equivocal
contextual evidence to the contrary.

What am I missing? Are there cases dealing with the "context" language in 1
USC 1?
___
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