RE: Contraception Mandate

[Alan Brownstein]

I have a lot of trouble with the argument that religious accommodations that 
effectively deny third parties government-mandated benefits to which they are 
otherwise entitled are not subject to Establishment Clause review. It is true 
that the government doesn’t have to protect anyone against employment 
discrimination and can decide how far it wants to extend such protection. It is 
also true that the government isn’t required to protect all people all the time 
against crimes like assault and battery (See Deshaney) or torts like conversion 
(See Flagg Brothers). But surely an exemption that allows religious individuals 
to assault third parties or commandeer their property violates the 
Establishment Clause.

I agree that the accommodation upheld in Amos burdened the employee who lost 
his job. I think the Court’s cases recognizing some Establishment Clause limit 
on accommodations involve some implied balancing. Implied balancing is 
necessary to determine whether an accommodation goes too far in burdening third 
parties and whether the accommodation does not impermissibly favor certain 
faiths over others. That’s one of the reasons I think Smith is unpersuasive 
when it rejects free exercise claims against neutral laws of general 
applicability in order to avoid subjective judicial balancing. When the job of 
granting accommodations is assigned to the legislature, court’s will have to 
engage in the same kind of balancing that they avoid in Free Exercise cases 
under Smith when they adjudicate Establishment Clause challenges to the 
accommodation because it allegedly impermissibly burdens third parties or 
favors certain religions over others.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 9:43 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

I do indeed think so.  The government doesn’t have to extend a 
government-mandated benefit to everyone; Title VII protections, for instance, 
aren’t extended to employees of small businesses, and are otherwise limited in 
various ways.  Indeed, a law can’t discriminate based on a beneficiary’s 
religion in extending such a benefit (except perhaps when the benefit is itself 
a religious accommodation).  But I don’t think that there should be an 
Establishment Clause  problem with a law saying that, for instance, those 
tenants who want to rent from religious objector landlords don’t get the 
protections of marital status discrimination law, those employees who work for 
religious vegetarian landlords don’t get the protections of the meaty lunch 
program, or those employees who work for employers who object to paying for 
contraceptives or abortifacents don’t get the protections of the relevant 
health care insurance program.

As to Cutter, the only way I can see of reconciling it with 
Amos is by not reading Thornton too broadly.  The accommodation in Amos did 
not, after all, at all “take adequate account of the burdens a requested 
accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as 
included denial of a government-mandated benefit.  The employee in Amos was 
seriously burdened indeed, by loss of his job, and not just of some benefit 
under the health insurance coverage.  That the employer was a nonprofit, after 
all, did not eliminate or even diminish the burden on the employees; employees 
of nonprofits are just as burdened by loss of a job as employees of 
for-profits.  And the law in Amos did not call on courts to “take adequate 
account of the burden.”

Eugene

Alan Brownstein writes:

Eugene, are you arguing that an exemption that effectively denies a class of 
individuals a government-mandated benefit that there are otherwise entitled to 
receive can never violate the Establishment Clause under Amos, Thornton, and 
Cutter? I think that requires courts to engage in an unhelpful inquiry trying 
to distinguish between benefits and burdens (does an exemption from laws 
requiring that employers provide employees a safe working environment impose a 
burden on workers or deny them a government-mandated benefit).

I think Cutter clearly suggests that exemptions would be unacceptable, not 
because they give the force of law to a believer’s action, but because of “the 
burdens a requested accommodation may impose on non-beneficiaries” and because 
an accommodation would “impose unjustified burdens on other institutionalized 
persons, or jeopardize the effective functioning of an institution.”

I agree that the mere fact that some burden is imposed or benefit denied does 
not demonstrate that an exemption violates the Establishment Clause. But 
accommodations that either impose direct burdens or interfere with mandated 
benefits can violate the Establishment Clause if they go too far.

Alan Brownstein

___
To 

RE: Contraception Mandate

[Volokh, Eugene]

I do indeed think so.  The government doesn’t have to extend a 
government-mandated benefit to everyone; Title VII protections, for instance, 
aren’t extended to employees of small businesses, and are otherwise limited in 
various ways.  Indeed, a law can’t discriminate based on a beneficiary’s 
religion in extending such a benefit (except perhaps when the benefit is itself 
a religious accommodation).  But I don’t think that there should be an 
Establishment Clause  problem with a law saying that, for instance, those 
tenants who want to rent from religious objector landlords don’t get the 
protections of marital status discrimination law, those employees who work for 
religious vegetarian landlords don’t get the protections of the meaty lunch 
program, or those employees who work for employers who object to paying for 
contraceptives or abortifacents don’t get the protections of the relevant 
health care insurance program.

As to Cutter, the only way I can see of reconciling it with 
Amos is by not reading Thornton too broadly.  The accommodation in Amos did 
not, after all, at all “take adequate account of the burdens a requested 
accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as 
included denial of a government-mandated benefit.  The employee in Amos was 
seriously burdened indeed, by loss of his job, and not just of some benefit 
under the health insurance coverage.  That the employer was a nonprofit, after 
all, did not eliminate or even diminish the burden on the employees; employees 
of nonprofits are just as burdened by loss of a job as employees of 
for-profits.  And the law in Amos did not call on courts to “take adequate 
account of the burden.”

Eugene

Alan Brownstein writes:

Eugene, are you arguing that an exemption that effectively denies a class of 
individuals a government-mandated benefit that there are otherwise entitled to 
receive can never violate the Establishment Clause under Amos, Thornton, and 
Cutter? I think that requires courts to engage in an unhelpful inquiry trying 
to distinguish between benefits and burdens (does an exemption from laws 
requiring that employers provide employees a safe working environment impose a 
burden on workers or deny them a government-mandated benefit).

I think Cutter clearly suggests that exemptions would be unacceptable, not 
because they give the force of law to a believer’s action, but because of “the 
burdens a requested accommodation may impose on non-beneficiaries” and because 
an accommodation would “impose unjustified burdens on other institutionalized 
persons, or jeopardize the effective functioning of an institution.”

I agree that the mere fact that some burden is imposed or benefit denied does 
not demonstrate that an exemption violates the Establishment Clause. But 
accommodations that either impose direct burdens or interfere with mandated 
benefits can violate the Establishment Clause if they go too far.

Alan Brownstein

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 2:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

I don’t see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don’t think that somehow constitutes the employer 
discriminating based on religion against people who don’t share his beliefs.

Now say that the government requires employers to buy lunch for 
their employees, and include meat (since that’s what the government sees as 
part of a healthy, balanced lunch), but has an exemption for religious 
employers.  I don’t think that would somehow violate the Establishment Clause, 
on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t impose any 
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a 
believer’s action (Amos’s explanation of Thornton).  It would simply -- like in 
Amos or in Cutter, which are indeed relevant for purposes of understanding the 
boundaries of Thornton -- exempt the employer from a government-imposed 
requirement, and indeed a requirement that (more so than in Amos) involves a 
government-imposed burden on the employer’s religious practice.  That the 
employees no longer get a government-mandated benefit does not make the 
exemption unconstitutional.

So I don’t think there’s an Establishment Clause problem with 
such exemptions, and likewise there wouldn’t be with any such exemption 
recognized under RFRA.  To be sure, this doesn’t tell us whether the exemption 
should still be denied, on the theory that the denial is necessary to serve a 
compelling government interest.  But that’s a separate question from whether 
the exemption would b

RE: Contraception Mandate

[Volokh, Eugene]

I agree with Michael, but there's a deeper point here, I think. 
 The employers in Hobby Lobby aren't seeking an order that employees not use 
contraception - they're just seeking to have employees pay it out of their own 
pockets.  Likewise, the employers in my hypothetical case aren't seeking an 
order that employees not eat meat - they're just seeking to have employees pay 
for the meat out of their own pockets.

As a result, the "burden" on employees in both scenarios is 
pretty much the same: the employees have to pay some not vast but substantial 
amount of money out of their own pockets for something that, absent an 
exemption, would be paid by the employer.  If I'm right that an exemption for 
religious objectors from the "you must buy meat for your employees' lunches" 
requirement wouldn't violate the Establishment Clause, then an exemption for 
religious objectors from the "you must buy coverage for contraceptives or 
abortifacents for your employees" wouldn't violate the Establishment Clause, 
either.

I should note that whether there's a compelling interest in 
denying such an exemption, such that the Court ought not recognize such an 
exemption under RFRA, is a separate matter.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Tuesday, November 26, 2013 3:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate

Obviously, I'm not degrading the interest in contraception; I just think saying 
"this isn't lunch" is a weird thing to say given the importance of food.

On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley 
mailto:mwor...@byulaw.net>> wrote:
Marci--

Would you think that a mandate that all (private, for-profit) schools buy lunch 
for their students be more compelling than this case?  In both cases, the third 
parties can buy food or contraception outside of the employer/school 
relationship?
You say "This isn't lunch-- it is medical treatment for women."
In essence, which is more essential-- free food or free contraception?

Michael

On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
This isn't lunch-- it is medical treatment for women.  (Contraceptive meds may 
work against some Catholics' beliefs but they are often taken for 
non-contraceptive reasons, so the contraception label for this is 
religio-centric).

And women have a civil right against these employers not to be discriminated 
against on gender or religion.  A benefit plan that carves out medical 
treatment based on the employer's religious beliefs and that only applies to 
women is discriminatory.

Let's say that the employer believes that all women should have their heads 
covered because of religious belief .  Again, discrimination based on religion 
and gender in violation of Title VII.

Or how about an employer who believes women belong in the home taking care of 
their kids, and therefore scales salary to deincentivize women and drive them 
from the workplace.   ( the answer that these employers wouldn't hire women is 
a factual dodge, that avoids the legal issue). Same problem

Or let's say that a religious company owner learns that an employee had an 
abortion (which is consistent w her religious beliefs) and fires her for doing 
what he believes is murder.   Discrimination on religion and gender.

In each of these cases I think the govt has a compelling interest in protecting 
women against such discrimination in these workplaces and that there is no less 
restrictive means than requiring cos covered by Title VII to cover women's 
health care, period.  Given that the woman makes an intervening choice whether 
to use it, burden on the employer is de minimis.
(I know that there is a claim that the very payment for the plan that includes 
contraception violates beliefs but the question is LRM and this is it)

Brad throws in a red herring -- the believer need not choose to have a 
for-profit company with over 50 employees.  Heading up a nonprofit or a smaller 
company escapes these civil rights.   There is no constitutional right to make 
money and engage in gender and religious discrimination.


Having said all that, the problem here is really RFRA, but I have written 
extensively on its shortcomings and won't belabor the point here.

Marci


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



On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
I don't see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don't t

RE: Contraception Mandate

[Volokh, Eugene]

(1) I agree with Alan, and think this is not an easy case, partly for that 
reason.



(2)My point about the supplemental insurance came in response to Marci's 
Jehovah's Witnesses hypothetical.  That insurance is likely to be cheap, 
because the likelihood of needing blood transfusions is so low.  I agree 
entirely that supplemental coverage for contraceptives is likely to be much 
more expensive, because the likelihood of using it is going to be much higher.



(3)I don't think TWA v. Hardison and Thornton v. Caldor stand for the 
proposition that exemptions from government-imposed burdens violate the 
Establishment Clause when they deny government-mandated benefits to third 
parties.  Rather, those cases involved government mandates imposed on private 
parties (there, employers).



(4)This having been said, while I don't think there's any Establishment 
Clause barrier to an exemption from the contraceptive mandate, I agree that 
whether there's a compelling interest in providing contraceptive coverage to 
employees is a difficult question, partly because no-one really knows what 
constitutes a compelling interest.  Likewise, whether there are less 
restrictive alternatives is also a difficult question, partly because of the 
issue that Alan raises.

Eugene




From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Tuesday, November 26, 2013 5:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

The answer has to lie somewhere in between these two stark alternatives, 
doesn't it? It can't be that the cost to the government (the public) in 
mitigating or avoiding the harm caused by granting an exemption can never be 
high enough to be compelling. But it also can't (or shouldn't) be that any 
accommodation that costs third parties or the government (the public) more than 
a de minimis amount violates the Establishment Clause.

Alan

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, November 26, 2013 4:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate

But the government is under no obligation to provide contraceptive coverage for 
women even if it loses these two cases in the Supreme Court.  And if it loses 
them, the female employees and family members who lose this coverage will 
suffer (in full) the third party harms that Nelson, Micah, Fred and others are 
discussing.  You can't measure the scope of those harms by some hypothetical 
measure that may never get enacted.  So the measure of their harm is the market 
cost of buying the contraceptives or contraceptive insurance (is there such a 
product?).  That is, on average, far more than the de minimis cost that TWA v. 
Hardison says is the (Establishment Clause) limit that Title VII can be allowed 
to impose on employers.  Avoiding that third party harm IS the compelling 
interest in the case.  Allowing hypothetical government provided substitutes -- 
e.g., if XYZ Company won't hire women, the government can hire them -- will 
mean the government can never win a RFRA case once substantial burden has been 
shown.  That can't be right.

On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
The less restrictive means would be to have the government 
offer such a plan, which employees could buy from the government (or from some 
other entity), without the employer being involved.  After all, until recently, 
employers weren't required to provide insurance at all, though there were 
substantial market pressures and tax incentives for them to do so.  The 
alternative would simply retain that pre-ACA system for the tiny corner of 
health care spending involved in blood transfusions for employees of companies 
that oppose such transfusions.

Now I certainly wouldn't say that such an alternative is 
constitutionally mandated, and I wouldn't relish the prospect of judges 
deciding, as a constitutional matter and with no possibility of legislative 
override, whether such an alternative would be too expensive or burdensome on 
the government.  (That's one reason I support Employment Division v. Smith as a 
view of the Free Exercise Clause.)  But RFRA is a Congressional judgment that 
judges should generally engage in 
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to 
Congressional authorization and with the possibility of a Congressional 
override.  So under RFRA, courts would have to consider whether this 
alternative system of funding blood transfusions is indeed a less restrictive 
means of serving a compelling government interest.

Eugene

RE: Contraception Mandate

[Alan Brownstein]

The answer has to lie somewhere in between these two stark alternatives, 
doesn't it? It can't be that the cost to the government (the public) in 
mitigating or avoiding the harm caused by granting an exemption can never be 
high enough to be compelling. But it also can't (or shouldn't) be that any 
accommodation that costs third parties or the government (the public) more than 
a de minimis amount violates the Establishment Clause.

Alan

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Tuesday, November 26, 2013 4:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate

But the government is under no obligation to provide contraceptive coverage for 
women even if it loses these two cases in the Supreme Court.  And if it loses 
them, the female employees and family members who lose this coverage will 
suffer (in full) the third party harms that Nelson, Micah, Fred and others are 
discussing.  You can't measure the scope of those harms by some hypothetical 
measure that may never get enacted.  So the measure of their harm is the market 
cost of buying the contraceptives or contraceptive insurance (is there such a 
product?).  That is, on average, far more than the de minimis cost that TWA v. 
Hardison says is the (Establishment Clause) limit that Title VII can be allowed 
to impose on employers.  Avoiding that third party harm IS the compelling 
interest in the case.  Allowing hypothetical government provided substitutes -- 
e.g., if XYZ Company won't hire women, the government can hire them -- will 
mean the government can never win a RFRA case once substantial burden has been 
shown.  That can't be right.

On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
The less restrictive means would be to have the government 
offer such a plan, which employees could buy from the government (or from some 
other entity), without the employer being involved.  After all, until recently, 
employers weren't required to provide insurance at all, though there were 
substantial market pressures and tax incentives for them to do so.  The 
alternative would simply retain that pre-ACA system for the tiny corner of 
health care spending involved in blood transfusions for employees of companies 
that oppose such transfusions.

Now I certainly wouldn't say that such an alternative is 
constitutionally mandated, and I wouldn't relish the prospect of judges 
deciding, as a constitutional matter and with no possibility of legislative 
override, whether such an alternative would be too expensive or burdensome on 
the government.  (That's one reason I support Employment Division v. Smith as a 
view of the Free Exercise Clause.)  But RFRA is a Congressional judgment that 
judges should generally engage in 
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to 
Congressional authorization and with the possibility of a Congressional 
override.  So under RFRA, courts would have to consider whether this 
alternative system of funding blood transfusions is indeed a less restrictive 
means of serving a compelling government interest.

Eugene
___
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Re: Contraception Mandate

[Michael Worley]

Right, but we're discussing constitutionality, so what Title VII doesn't
say doesn't constrain my question:

Were Title VII amended to require private, for-profit schools to give food,
would that be a higher "compelling interest" than the interest in
contraception?


On Tue, Nov 26, 2013 at 5:13 PM, Marci Hamilton  wrote:

> There is nothing in title VII that governs all of the companies involved
> here that involves food, lunch, or children. These issues are about
> adult women employees who are protected by Title VII from employers who
> make religion a prerequisite to employment or who, in my view, craft
> benefits and/or salaries based on religion or gender.
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Nov 26, 2013, at 6:59 PM, Michael Worley  wrote:
>
> Obviously, I'm not degrading the interest in contraception; I just think
> saying "this isn't lunch" is a weird thing to say given the importance of
> food.
>
>
> On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley wrote:
>
>> Marci--
>>
>> Would you think that a mandate that all (private, for-profit) schools buy
>> lunch for their students be more compelling than this case?  In both cases,
>> the third parties can buy food or contraception outside of the
>> employer/school relationship?
>> You say "This isn't lunch-- it is medical treatment for women."
>> In essence, which is more essential-- free food or free contraception?
>>
>> Michael
>>
>>
>> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton wrote:
>>
>>> This isn't lunch-- it is medical treatment for women.  (Contraceptive
>>> meds may work against some Catholics' beliefs but they are often taken for
>>> non-contraceptive reasons, so the contraception label for this is
>>> religio-centric).
>>>
>>> And women have a civil right against these employers not to be
>>> discriminated against on gender or religion.  A benefit plan that carves
>>> out medical treatment based on the employer's religious beliefs and that
>>> only applies to women is discriminatory.
>>>
>>> Let's say that the employer believes that all women should have their
>>> heads covered because of religious belief .  Again, discrimination based on
>>> religion and gender in violation of Title VII.
>>>
>>> Or how about an employer who believes women belong in the home taking
>>> care of their kids, and therefore scales salary to deincentivize women and
>>> drive them from the workplace.   ( the answer that these employers wouldn't
>>> hire women is a factual dodge, that avoids the legal issue). Same problem
>>>
>>> Or let's say that a religious company owner learns that an employee had
>>> an abortion (which is consistent w her religious beliefs) and fires her for
>>> doing what he believes is murder.   Discrimination on religion and gender.
>>>
>>> In each of these cases I think the govt has a compelling interest in
>>> protecting women against such discrimination in these workplaces and that
>>> there is no less restrictive means than requiring cos covered by Title VII
>>> to cover women's health care, period.  Given that the woman makes an
>>> intervening choice whether to use it, burden on the employer is de minimis.
>>> (I know that there is a claim that the very payment for the plan that
>>> includes contraception violates beliefs but the question is LRM and this is
>>> it)
>>>
>>> Brad throws in a red herring -- the believer need not choose to have a
>>> for-profit company with over 50 employees.  Heading up a nonprofit or a
>>> smaller company escapes these civil rights.   There is no constitutional
>>> right to make money and engage in gender and religious discrimination.
>>>
>>>
>>> Having said all that, the problem here is really RFRA, but I have
>>> written extensively on its shortcomings and won't belabor the point here.
>>>
>>> Marci
>>>
>>>
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton
>>>
>>>
>>>
>>> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" 
>>> wrote:
>>>
>>> I don’t see that at all.  Say the government requires
>>> employers to buy lunch for their employees, and a religiously vegetarian
>>> employer orders only vegetarian food.  I don’t think that somehow
>>> constitutes the employer discriminating based on religion against people
>>> who don’t share his beliefs.
>>>
>>>
>>>
>>> Now say that the government requires employers to buy
>>> lunch for their employees, and include meat (since that’s what the
>>> government sees as part of a healthy, balanced lunch), but has an exemption
>>> for religious employers.  I don’t think that would somehow violate the
>>> Establishment Clause, on a Thornton theory.  Unlike in Thornton, the
>>> exemption wouldn’t impose any legal coercion on an objecting nonbeliever,
>>> by “giv[ing] the force of law” to a believer’s action (Amos’s explanation
>>> of Thornton).  It would sim

Re: Contraception Mandate

[Ira Lupu]

But the government is under no obligation to provide contraceptive coverage
for women even if it loses these two cases in the Supreme Court.  And if it
loses them, the female employees and family members who lose this coverage
will suffer (in full) the third party harms that Nelson, Micah, Fred and
others are discussing.  You can't measure the scope of those harms by some
hypothetical measure that may never get enacted.  So the measure of their
harm is the market cost of buying the contraceptives or contraceptive
insurance (is there such a product?).  That is, on average, far more than
the de minimis cost that TWA v. Hardison says is the (Establishment Clause)
limit that Title VII can be allowed to impose on employers.  Avoiding that
third party harm IS the compelling interest in the case.  Allowing
hypothetical government provided substitutes -- e.g., if XYZ Company won't
hire women, the government can hire them -- will mean the government can
never win a RFRA case once substantial burden has been shown.  That can't
be right.


On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene  wrote:

> The less restrictive means would be to have the government
> offer such a plan, which employees could buy from the government (or from
> some other entity), without the employer being involved.  After all, until
> recently, employers weren’t required to provide insurance at all, though
> there were substantial market pressures and tax incentives for them to do
> so.  The alternative would simply retain that pre-ACA system for the tiny
> corner of health care spending involved in blood transfusions for employees
> of companies that oppose such transfusions.
>
>
>
> Now I certainly wouldn’t say that such an alternative is
> constitutionally mandated, and I wouldn’t relish the prospect of judges
> deciding, as a constitutional matter and with no possibility of legislative
> override, whether such an alternative would be too expensive or burdensome
> on the government.  (That’s one reason I support Employment Division v.
> Smith as a view of the Free Exercise Clause.)  But RFRA is a Congressional
> judgment that judges should generally engage in
> least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant
> to Congressional authorization and with the possibility of a Congressional
> override.  So under RFRA, courts would have to consider whether this
> alternative system of funding blood transfusions is indeed a less
> restrictive means of serving a compelling government interest.
>
>
>
> Eugene
>
>
>
> *From:* religionlaw-bounces+volokh=law.ucla@lists.ucla.edu [mailto:
> religionlaw-bounces+volokh=law.ucla@lists.ucla.edu] *On Behalf Of *
> hamilto...@aol.com
> *Sent:* Tuesday, November 26, 2013 2:29 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Contraception Mandate
>
>
>
> I'll wait for others to weigh in on the first, but with respect to the
> second,
>
>
>
> I thought the argument was that the employer can't be part of a system
> that involves acts by others that violate his religious beliefs.
>
> How does the cheap supplementary plan for transfusions solve the Jehovahs
> Witness's being part of a system that
>
> involves acts that violate his religious beliefs?  Is Hobby Lobby willing
> to provide a supplementary, inexpensive plan for contraception?
>
>
>
>
>
> Marci
>
>
>
>
>
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> http://sol-reform.com
>
> <https://www.facebook.com/professormarciahamilton?fref=ts>   
> <https://twitter.com/marci_hamilton>
>
>
>
>
> -Original Message-
> From: Volokh, Eugene 
> To: Law & Religion issues for Law Academics 
> Sent: Tue, Nov 26, 2013 5:21 pm
> Subject: RE: Contraception Mandate
>
>   I’m not Brad, but I thought I’d put my two cents’ worth in:
>
>
>
> Brad-Is it your view that for-profit companies over 50 employees
> (those affected here), who are subject to Title VII, and may not
> discriminate on the basis of religion or gender,
>
> can tailor their salary and benefit plans according to religious beliefs
> and gender?
>
>
>
>   I should think that, whether the company is for-profit or
> non-profit (and corporation or sole proprietorship), the ban on
> discrimination might well impose a substantial burden on the employer -- if
> the employer feels a religious obligation to discriminate -- but would be
> upheld under strict scrutiny, no?  But I take it that the case for the
> contraception 

Re: Contraception Mandate

[Marci Hamilton]

There is nothing in title VII that governs all of the companies involved here 
that involves food, lunch, or children. These issues are about adult women 
employees who are protected by Title VII from employers who make religion a 
prerequisite to employment or who, in my view, craft benefits and/or salaries 
based on religion or gender.   

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



On Nov 26, 2013, at 6:59 PM, Michael Worley  wrote:

> Obviously, I'm not degrading the interest in contraception; I just think 
> saying "this isn't lunch" is a weird thing to say given the importance of 
> food.
> 
> 
> On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley  wrote:
>> Marci--
>> 
>> Would you think that a mandate that all (private, for-profit) schools buy 
>> lunch for their students be more compelling than this case?  In both cases, 
>> the third parties can buy food or contraception outside of the 
>> employer/school relationship?
>> You say "This isn't lunch-- it is medical treatment for women."
>> In essence, which is more essential-- free food or free contraception?
>> 
>> Michael
>> 
>> 
>> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton  wrote:
>>> This isn't lunch-- it is medical treatment for women.  (Contraceptive meds 
>>> may work against some Catholics' beliefs but they are often taken for 
>>> non-contraceptive reasons, so the contraception label for this is 
>>> religio-centric).   
>>> 
>>> And women have a civil right against these employers not to be 
>>> discriminated against on gender or religion.  A benefit plan that carves 
>>> out medical treatment based on the employer's religious beliefs and that 
>>> only applies to women is discriminatory.
>>> 
>>> Let's say that the employer believes that all women should have their heads 
>>> covered because of religious belief .  Again, discrimination based on 
>>> religion and gender in violation of Title VII.
>>> 
>>> Or how about an employer who believes women belong in the home taking care 
>>> of their kids, and therefore scales salary to deincentivize women and drive 
>>> them from the workplace.   ( the answer that these employers wouldn't hire 
>>> women is a factual dodge, that avoids the legal issue). Same problem
>>> 
>>> Or let's say that a religious company owner learns that an employee had an 
>>> abortion (which is consistent w her religious beliefs) and fires her for 
>>> doing what he believes is murder.   Discrimination on religion and gender.
>>> 
>>> In each of these cases I think the govt has a compelling interest in 
>>> protecting women against such discrimination in these workplaces and that 
>>> there is no less restrictive means than requiring cos covered by Title VII 
>>> to cover women's health care, period.  Given that the woman makes an 
>>> intervening choice whether to use it, burden on the employer is de minimis.
>>> (I know that there is a claim that the very payment for the plan that 
>>> includes contraception violates beliefs but the question is LRM and this is 
>>> it)
>>> 
>>> Brad throws in a red herring -- the believer need not choose to have a 
>>> for-profit company with over 50 employees.  Heading up a nonprofit or a 
>>> smaller company escapes these civil rights.   There is no constitutional 
>>> right to make money and engage in gender and religious discrimination.
>>> 
>>> 
>>> Having said all that, the problem here is really RFRA, but I have written 
>>> extensively on its shortcomings and won't belabor the point here.   
>>> 
>>> Marci
>>> 
>>> 
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton 
>>> 
>>> 
>>> 
>>> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene"  wrote:
>>> 
 I don’t see that at all.  Say the government requires 
 employers to buy lunch for their employees, and a religiously vegetarian 
 employer orders only vegetarian food.  I don’t think that somehow 
 constitutes the employer discriminating based on religion against people 
 who don’t share his beliefs.
 
  
 
 Now say that the government requires employers to buy 
 lunch for their employees, and include meat (since that’s what the 
 government sees as part of a healthy, balanced lunch), but has an 
 exemption for religious employers.  I don’t think that would somehow 
 violate the Establishment Clause, on a Thornton theory.  Unlike in 
 Thornton, the exemption wouldn’t impose any legal coercion on an objecting 
 nonbeliever, by “giv[ing] the force of law” to a believer’s action (Amos’s 
 explanation of Thornton).  It would simply -- like in Amos or in Cutter, 
 which are indeed relevant for purposes of understanding the boundaries of 
 Thornton -- exempt the employer from a government-imposed requirement, and 
 indeed a requirement that (more so than in Amos) involves a 
>>

Re: Contraception Mandate

[Michael Worley]

Obviously, I'm not degrading the interest in contraception; I just think
saying "this isn't lunch" is a weird thing to say given the importance of
food.


On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley  wrote:

> Marci--
>
> Would you think that a mandate that all (private, for-profit) schools buy
> lunch for their students be more compelling than this case?  In both cases,
> the third parties can buy food or contraception outside of the
> employer/school relationship?
> You say "This isn't lunch-- it is medical treatment for women."
> In essence, which is more essential-- free food or free contraception?
>
> Michael
>
>
> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton wrote:
>
>> This isn't lunch-- it is medical treatment for women.  (Contraceptive
>> meds may work against some Catholics' beliefs but they are often taken for
>> non-contraceptive reasons, so the contraception label for this is
>> religio-centric).
>>
>> And women have a civil right against these employers not to be
>> discriminated against on gender or religion.  A benefit plan that carves
>> out medical treatment based on the employer's religious beliefs and that
>> only applies to women is discriminatory.
>>
>> Let's say that the employer believes that all women should have their
>> heads covered because of religious belief .  Again, discrimination based on
>> religion and gender in violation of Title VII.
>>
>> Or how about an employer who believes women belong in the home taking
>> care of their kids, and therefore scales salary to deincentivize women and
>> drive them from the workplace.   ( the answer that these employers wouldn't
>> hire women is a factual dodge, that avoids the legal issue). Same problem
>>
>> Or let's say that a religious company owner learns that an employee had
>> an abortion (which is consistent w her religious beliefs) and fires her for
>> doing what he believes is murder.   Discrimination on religion and gender.
>>
>> In each of these cases I think the govt has a compelling interest in
>> protecting women against such discrimination in these workplaces and that
>> there is no less restrictive means than requiring cos covered by Title VII
>> to cover women's health care, period.  Given that the woman makes an
>> intervening choice whether to use it, burden on the employer is de minimis.
>> (I know that there is a claim that the very payment for the plan that
>> includes contraception violates beliefs but the question is LRM and this is
>> it)
>>
>> Brad throws in a red herring -- the believer need not choose to have a
>> for-profit company with over 50 employees.  Heading up a nonprofit or a
>> smaller company escapes these civil rights.   There is no constitutional
>> right to make money and engage in gender and religious discrimination.
>>
>>
>> Having said all that, the problem here is really RFRA, but I have written
>> extensively on its shortcomings and won't belabor the point here.
>>
>> Marci
>>
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" 
>> wrote:
>>
>> I don’t see that at all.  Say the government requires
>> employers to buy lunch for their employees, and a religiously vegetarian
>> employer orders only vegetarian food.  I don’t think that somehow
>> constitutes the employer discriminating based on religion against people
>> who don’t share his beliefs.
>>
>>
>>
>> Now say that the government requires employers to buy
>> lunch for their employees, and include meat (since that’s what the
>> government sees as part of a healthy, balanced lunch), but has an exemption
>> for religious employers.  I don’t think that would somehow violate the
>> Establishment Clause, on a Thornton theory.  Unlike in Thornton, the
>> exemption wouldn’t impose any legal coercion on an objecting nonbeliever,
>> by “giv[ing] the force of law” to a believer’s action (Amos’s explanation
>> of Thornton).  It would simply -- like in Amos or in Cutter, which are
>> indeed relevant for purposes of understanding the boundaries of Thornton --
>> exempt the employer from a government-imposed requirement, and indeed a
>> requirement that (more so than in Amos) involves a government-imposed
>> burden on the employer’s religious practice.  That the employees no longer
>> get a government-mandated benefit does not make the exemption
>> unconstitutional.
>>
>>
>>
>> So I don’t think there’s an Establishment Clause problem
>> with such exemptions, and likewise there wouldn’t be with any such
>> exemption recognized under RFRA.  To be sure, this doesn’t tell us whether
>> the exemption should still be denied, on the theory that the denial is
>> necessary to serve a compelling government interest.  But that’s a separate
>> question from whether the exemption would be outright unconstitutional.
>>
>>
>>
>> Eugene
>>
>>
>>
>> Marci wrote:

Re: Contraception Mandate

[Michael Worley]

Marci--

Would you think that a mandate that all (private, for-profit) schools buy
lunch for their students be more compelling than this case?  In both cases,
the third parties can buy food or contraception outside of the
employer/school relationship?
You say "This isn't lunch-- it is medical treatment for women."
In essence, which is more essential-- free food or free contraception?

Michael


On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton  wrote:

> This isn't lunch-- it is medical treatment for women.  (Contraceptive meds
> may work against some Catholics' beliefs but they are often taken for
> non-contraceptive reasons, so the contraception label for this is
> religio-centric).
>
> And women have a civil right against these employers not to be
> discriminated against on gender or religion.  A benefit plan that carves
> out medical treatment based on the employer's religious beliefs and that
> only applies to women is discriminatory.
>
> Let's say that the employer believes that all women should have their
> heads covered because of religious belief .  Again, discrimination based on
> religion and gender in violation of Title VII.
>
> Or how about an employer who believes women belong in the home taking care
> of their kids, and therefore scales salary to deincentivize women and drive
> them from the workplace.   ( the answer that these employers wouldn't hire
> women is a factual dodge, that avoids the legal issue). Same problem
>
> Or let's say that a religious company owner learns that an employee had an
> abortion (which is consistent w her religious beliefs) and fires her for
> doing what he believes is murder.   Discrimination on religion and gender.
>
> In each of these cases I think the govt has a compelling interest in
> protecting women against such discrimination in these workplaces and that
> there is no less restrictive means than requiring cos covered by Title VII
> to cover women's health care, period.  Given that the woman makes an
> intervening choice whether to use it, burden on the employer is de minimis.
> (I know that there is a claim that the very payment for the plan that
> includes contraception violates beliefs but the question is LRM and this is
> it)
>
> Brad throws in a red herring -- the believer need not choose to have a
> for-profit company with over 50 employees.  Heading up a nonprofit or a
> smaller company escapes these civil rights.   There is no constitutional
> right to make money and engage in gender and religious discrimination.
>
>
> Having said all that, the problem here is really RFRA, but I have written
> extensively on its shortcomings and won't belabor the point here.
>
> Marci
>
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene"  wrote:
>
> I don’t see that at all.  Say the government requires
> employers to buy lunch for their employees, and a religiously vegetarian
> employer orders only vegetarian food.  I don’t think that somehow
> constitutes the employer discriminating based on religion against people
> who don’t share his beliefs.
>
>
>
> Now say that the government requires employers to buy
> lunch for their employees, and include meat (since that’s what the
> government sees as part of a healthy, balanced lunch), but has an exemption
> for religious employers.  I don’t think that would somehow violate the
> Establishment Clause, on a Thornton theory.  Unlike in Thornton, the
> exemption wouldn’t impose any legal coercion on an objecting nonbeliever,
> by “giv[ing] the force of law” to a believer’s action (Amos’s explanation
> of Thornton).  It would simply -- like in Amos or in Cutter, which are
> indeed relevant for purposes of understanding the boundaries of Thornton --
> exempt the employer from a government-imposed requirement, and indeed a
> requirement that (more so than in Amos) involves a government-imposed
> burden on the employer’s religious practice.  That the employees no longer
> get a government-mandated benefit does not make the exemption
> unconstitutional.
>
>
>
> So I don’t think there’s an Establishment Clause problem
> with such exemptions, and likewise there wouldn’t be with any such
> exemption recognized under RFRA.  To be sure, this doesn’t tell us whether
> the exemption should still be denied, on the theory that the denial is
> necessary to serve a compelling government interest.  But that’s a separate
> question from whether the exemption would be outright unconstitutional.
>
>
>
> Eugene
>
>
>
> Marci wrote:
>
>
>
> The employer is insisting that employees accept benefit plans tailored to
> his religious beliefs, even though they accepted employment, which under
> federal law
>
> prohibits the employer from discriminating on the basis of religion (or
> gender).
>
> ___
>
> To post, send me

RE: Contraception Mandate

[Alan Brownstein]

Eugene, are you arguing that an exemption that effectively denies a class of 
individuals a government-mandated benefit that there are otherwise entitled to 
receive can never violate the Establishment Clause under Amos, Thornton, and 
Cutter? I think that requires courts to engage in an unhelpful inquiry trying 
to distinguish between benefits and burdens (does an exemption from laws 
requiring that employers provide employees a safe working environment impose a 
burden on workers or deny them a government-mandated benefit).

I think Cutter clearly suggests that exemptions would be unacceptable, not 
because they give the force of law to a believer’s action, but because of “the 
burdens a requested accommodation may impose on non-beneficiaries” and because 
an accommodation would “impose unjustified burdens on other institutionalized 
persons, or jeopardize the effective functioning of an institution.”

I agree that the mere fact that some burden is imposed or benefit denied does 
not demonstrate that an exemption violates the Establishment Clause. But 
accommodations that either impose direct burdens or interfere with mandated 
benefits can violate the Establishment Clause if they go too far.

Alan Brownstein

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 2:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate

I don’t see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don’t think that somehow constitutes the employer 
discriminating based on religion against people who don’t share his beliefs.

Now say that the government requires employers to buy lunch for 
their employees, and include meat (since that’s what the government sees as 
part of a healthy, balanced lunch), but has an exemption for religious 
employers.  I don’t think that would somehow violate the Establishment Clause, 
on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t impose any 
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a 
believer’s action (Amos’s explanation of Thornton).  It would simply -- like in 
Amos or in Cutter, which are indeed relevant for purposes of understanding the 
boundaries of Thornton -- exempt the employer from a government-imposed 
requirement, and indeed a requirement that (more so than in Amos) involves a 
government-imposed burden on the employer’s religious practice.  That the 
employees no longer get a government-mandated benefit does not make the 
exemption unconstitutional.

So I don’t think there’s an Establishment Clause problem with 
such exemptions, and likewise there wouldn’t be with any such exemption 
recognized under RFRA.  To be sure, this doesn’t tell us whether the exemption 
should still be denied, on the theory that the denial is necessary to serve a 
compelling government interest.  But that’s a separate question from whether 
the exemption would be outright unconstitutional.

Eugene

Marci wrote:

The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or gender).
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Re: Contraception Mandate

[Marci Hamilton]

This isn't lunch-- it is medical treatment for women.  (Contraceptive meds may 
work against some Catholics' beliefs but they are often taken for 
non-contraceptive reasons, so the contraception label for this is 
religio-centric).   

And women have a civil right against these employers not to be discriminated 
against on gender or religion.  A benefit plan that carves out medical 
treatment based on the employer's religious beliefs and that only applies to 
women is discriminatory.

Let's say that the employer believes that all women should have their heads 
covered because of religious belief .  Again, discrimination based on religion 
and gender in violation of Title VII.

Or how about an employer who believes women belong in the home taking care of 
their kids, and therefore scales salary to deincentivize women and drive them 
from the workplace.   ( the answer that these employers wouldn't hire women is 
a factual dodge, that avoids the legal issue). Same problem

Or let's say that a religious company owner learns that an employee had an 
abortion (which is consistent w her religious beliefs) and fires her for doing 
what he believes is murder.   Discrimination on religion and gender.

In each of these cases I think the govt has a compelling interest in protecting 
women against such discrimination in these workplaces and that there is no less 
restrictive means than requiring cos covered by Title VII to cover women's 
health care, period.  Given that the woman makes an intervening choice whether 
to use it, burden on the employer is de minimis.
(I know that there is a claim that the very payment for the plan that includes 
contraception violates beliefs but the question is LRM and this is it)

Brad throws in a red herring -- the believer need not choose to have a 
for-profit company with over 50 employees.  Heading up a nonprofit or a smaller 
company escapes these civil rights.   There is no constitutional right to make 
money and engage in gender and religious discrimination.


Having said all that, the problem here is really RFRA, but I have written 
extensively on its shortcomings and won't belabor the point here.   

Marci


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



On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene"  wrote:

> I don’t see that at all.  Say the government requires 
> employers to buy lunch for their employees, and a religiously vegetarian 
> employer orders only vegetarian food.  I don’t think that somehow constitutes 
> the employer discriminating based on religion against people who don’t share 
> his beliefs.
>  
> Now say that the government requires employers to buy lunch 
> for their employees, and include meat (since that’s what the government sees 
> as part of a healthy, balanced lunch), but has an exemption for religious 
> employers.  I don’t think that would somehow violate the Establishment 
> Clause, on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t 
> impose any legal coercion on an objecting nonbeliever, by “giv[ing] the force 
> of law” to a believer’s action (Amos’s explanation of Thornton).  It would 
> simply -- like in Amos or in Cutter, which are indeed relevant for purposes 
> of understanding the boundaries of Thornton -- exempt the employer from a 
> government-imposed requirement, and indeed a requirement that (more so than 
> in Amos) involves a government-imposed burden on the employer’s religious 
> practice.  That the employees no longer get a government-mandated benefit 
> does not make the exemption unconstitutional.
>  
> So I don’t think there’s an Establishment Clause problem with 
> such exemptions, and likewise there wouldn’t be with any such exemption 
> recognized under RFRA.  To be sure, this doesn’t tell us whether the 
> exemption should still be denied, on the theory that the denial is necessary 
> to serve a compelling government interest.  But that’s a separate question 
> from whether the exemption would be outright unconstitutional.
>  
> Eugene
>  
> Marci wrote:
>  
> The employer is insisting that employees accept benefit plans tailored to his 
> religious beliefs, even though they accepted employment, which under federal 
> law
> prohibits the employer from discriminating on the basis of religion (or 
> gender).   
> ___
> 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 Rel

RE: Contraception Mandate

[Volokh, Eugene]

That seems to me to be precisely the issue that the Court faced 
in United States v. Lee, and that lower courts have faced with regard to 
similar objectors -- granting such exemptions, especially given that they are 
sure to proliferate, would indeed substantially undermine the compelling 
government interest, and no less restrictive alternative is available.  "Unlike 
the situation presented in Wisconsin v. Yoder, it would be difficult to 
accommodate the comprehensive social security system with myriad exceptions 
flowing from a wide variety of religious beliefs."

But as O Centro made clear, not all statutory schemes would indeed be 
substantially undermined by grants of occasional exceptions.  RFRA requires 
courts to analyze each statutory scheme on its own terms, to determine how much 
accommodating religious objectors would indeed interfere with the scheme.  And 
I'm not at this point convinced (though I in principle could be) that 
accommodating religious objections to the ACA, especially given the ones we've 
seen so far, would create such interference.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Tuesday, November 26, 2013 3:08 PM
To: Law Religion & Law List
Subject: Fwd: Contraception Mandate

Brad and Eugene,

How does compellingness analysis work when the government tortures people and 
kills civilians with drones and invades Iraq, all of which are against my 
religious beliefs and yet makes me pay for them?

This is a serious question.  I'm not a great fan of Smith (nor of RFRA, being 
more of a balancing kind a guy (not claiming to be balanced)), but how does a 
society function if there is such a unit veto?


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://iipsj.com/SDJ/

"The modern trouble is in a low capacity to believe in precepts which restrict 
and restrain private interests and desires."

Walter Lippmann





On Nov 26, 2013, at 5:44 PM, Brad Pardee 
mailto:bp51...@windstream.net>> wrote:


Marci,

I believe that there should be strict scrutiny before a person is compelled by 
law to choose between obeying their God and obeying their government.  Anything 
less gives the government a blank check to command or prohibit anything it 
wants to, and if that means you have to do what your God has prohibited or you 
cannot do what your God has commanded, that's just too bad.  Either chuck your 
God or face the consequences.

Your first example seems like an unlikely hypothetical because I don't know of 
any situation where providing equal salary and benfits regardless of religious 
beliefs or gender would force a person to act in opposition to the mandates of 
their faith.  There may be faiths that permit an employer to pay an employee 
less based on religion or gender, but I'm not familiar of any that would 
require an employer to do so.

I think that there is a compelling interest in the case of blood transfusions 
because that is a matter of life and death.  Contraception is not a life and 
death issue, and I can't think of any other way in which it would become a 
compelling interest.

Brad


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RE: Contraception Mandate

[Alan Brownstein]

Interesting piece. I think there have been and should be Establishment Clause 
constraints on the burdens religious accommodations can impose on third 
parties, but determining how and where this line should be drawn is no easy 
task.

I think there are three other distinctions or questions one might raise about 
extending RFRA exemptions to for-profit corporations.

First, religious liberty and freedom of conscience is primarily a dignitary 
right, not an instrumental right. Citizens United involved the instrumental 
goals of the free speech clause. Does the Constitution provide the same 
dignitary protection to corporations that it provides to human persons? See, 
e.g. Justice Rehnquist's dissent in PG & E v. PUC.

Second, I think the state would need to worry more about sham claims for 
religious exemptions from for-profit companies than religious non-profits. The 
religious identity of the great majority of religious non-profit corporations 
is not hard to determine. Religion is the core of their activity. The core 
activity of the great majority of for-profit corporation is making a profit. It 
will be harder to guarantee the genuineness of claims for religious exemptions 
in the for-profit sector. This is particularly true when the exemption will 
reduce the corporation's costs. While this concern might be more appropriately 
considered in the application of strict scrutiny review, one might argue that 
the case for not granting the exemption is sufficiently strong that we could 
adopt a prophylactic rule preventing for-profit companies from asserting the 
statutory right in the first place.

Third, we often require the recipients of exemptions to channel the cost of the 
obligation they need not obey toward some other public good or service that is 
consistent with their faith. See, e.g. conscientious objectors being required 
to perform alternative service. Would the case for an exemption be strengthened 
if the recipient of the exemption was required to direct whatever it saved from 
being relieved of the obligation to provide contraceptive coverage toward some 
other government identified public good?

I am inclined to agree with Tom that there are important arguments on both 
sides of this case.

Alan Brownstein



-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 12:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting 
on today's cert. grant. We emphasize three differences between these cases and 
Citizens United, including the significant Establishment Clause ramifications 
of ruling in favor of the corporations here. We link to important work by Fred 
Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html
 

Nelson Tebbe
___
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RE: Contraception Mandate

[Volokh, Eugene]

I don’t see that at all.  Say the government requires employers 
to buy lunch for their employees, and a religiously vegetarian employer orders 
only vegetarian food.  I don’t think that somehow constitutes the employer 
discriminating based on religion against people who don’t share his beliefs.

Now say that the government requires employers to buy lunch for 
their employees, and include meat (since that’s what the government sees as 
part of a healthy, balanced lunch), but has an exemption for religious 
employers.  I don’t think that would somehow violate the Establishment Clause, 
on a Thornton theory.  Unlike in Thornton, the exemption wouldn’t impose any 
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a 
believer’s action (Amos’s explanation of Thornton).  It would simply -- like in 
Amos or in Cutter, which are indeed relevant for purposes of understanding the 
boundaries of Thornton -- exempt the employer from a government-imposed 
requirement, and indeed a requirement that (more so than in Amos) involves a 
government-imposed burden on the employer’s religious practice.  That the 
employees no longer get a government-mandated benefit does not make the 
exemption unconstitutional.

So I don’t think there’s an Establishment Clause problem with 
such exemptions, and likewise there wouldn’t be with any such exemption 
recognized under RFRA.  To be sure, this doesn’t tell us whether the exemption 
should still be denied, on the theory that the denial is necessary to serve a 
compelling government interest.  But that’s a separate question from whether 
the exemption would be outright unconstitutional.

Eugene

Marci wrote:

The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or gender).
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RE: Contraception Mandate

[Brad Pardee]

Marci,

 

I believe that there should be strict scrutiny before a person is compelled
by law to choose between obeying their God and obeying their government.
Anything less gives the government a blank check to command or prohibit
anything it wants to, and if that means you have to do what your God has
prohibited or you cannot do what your God has commanded, that's just too
bad.  Either chuck your God or face the consequences.

 

Your first example seems like an unlikely hypothetical because I don't know
of any situation where providing equal salary and benfits regardless of
religious beliefs or gender would force a person to act in opposition to the
mandates of their faith.  There may be faiths that permit an employer to pay
an employee less based on religion or gender, but I'm not familiar of any
that would require an employer to do so.

 

I think that there is a compelling interest in the case of blood
transfusions because that is a matter of life and death.  Contraception is
not a life and death issue, and I can't think of any other way in which it
would become a compelling interest.

 

Brad

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Tuesday, November 26, 2013 4:04 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception Mandate

 

Brad-Is it your view that for-profit companies over 50 employees (those
affected here), who are subject to Title VII, and may not discriminate on
the basis of religion or gender, 

can tailor their salary and benefit plans according to religious beliefs and
gender?   

 

Separately, what is your view on whether a Jehovah's Witness for-profit
company can exclude blood transfusions as part of its benefits plan?  

 

 

Thanks 

 

Marci

 

 

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003 
(212) 790-0215 
http://sol-reform.com <http://sol-reform.com/> 

 <https://www.facebook.com/professormarciahamilton?fref=ts>
<https://twitter.com/marci_hamilton>  

 

-Original Message-
From: Brad Pardee 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Nov 26, 2013 4:57 pm
Subject: RE: Contraception Mandate

There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.
 
Brad Pardee
 
-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu
<mailto:religionlaw-boun...@lists.ucla.edu?> ] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate
 
 
 
Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.
 
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 
 
Nelson Tebbe
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Please not

RE: Contraception Mandate

[Volokh, Eugene]

The less restrictive means would be to have the government 
offer such a plan, which employees could buy from the government (or from some 
other entity), without the employer being involved.  After all, until recently, 
employers weren’t required to provide insurance at all, though there were 
substantial market pressures and tax incentives for them to do so.  The 
alternative would simply retain that pre-ACA system for the tiny corner of 
health care spending involved in blood transfusions for employees of companies 
that oppose such transfusions.

Now I certainly wouldn’t say that such an alternative is 
constitutionally mandated, and I wouldn’t relish the prospect of judges 
deciding, as a constitutional matter and with no possibility of legislative 
override, whether such an alternative would be too expensive or burdensome on 
the government.  (That’s one reason I support Employment Division v. Smith as a 
view of the Free Exercise Clause.)  But RFRA is a Congressional judgment that 
judges should generally engage in 
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to 
Congressional authorization and with the possibility of a Congressional 
override.  So under RFRA, courts would have to consider whether this 
alternative system of funding blood transfusions is indeed a less restrictive 
means of serving a compelling government interest.

Eugene

From: religionlaw-bounces+volokh=law.ucla@lists.ucla.edu 
[mailto:religionlaw-bounces+volokh=law.ucla@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com
Sent: Tuesday, November 26, 2013 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception Mandate

I'll wait for others to weigh in on the first, but with respect to the second,

I thought the argument was that the employer can't be part of a system that 
involves acts by others that violate his religious beliefs.
How does the cheap supplementary plan for transfusions solve the Jehovahs 
Witness's being part of a system that
involves acts that violate his religious beliefs?  Is Hobby Lobby willing to 
provide a supplementary, inexpensive plan for contraception?


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Volokh, Eugene mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Tue, Nov 26, 2013 5:21 pm
Subject: RE: Contraception Mandate
  I’m not Brad, but I thought I’d put my two cents’ worth in:

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?

  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?

  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions).

  Eugene

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To subscr

Re: Contraception Mandate

[hamilton02]

Tom--


The employer is insisting that employees accept benefit plans tailored to his 
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or 
gender).   


Amos is irrelevant as a religious organization has an exemption that a 
for-profit corporation does not have under Title VII.  


Marci


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





-Original Message-
From: Berg, Thomas C. 
To: religionlaw 
Sent: Tue, Nov 26, 2013 5:27 pm
Subject: RE: Contraception Mandate



Thanks, Nelson.  This is an interesting piece, and I respect the arguments on 
both sides.  But I have a couple of critical reactions:
 
1.  I wonder whether it's really helpful or effective to start by dismissing an 
argument as something "off the wall" that somehow, inexplicably, has gone 
mainstream.  The judges on both sides of this issue have advanced serious 
arguments, and I'm more inclined to concentrate on their merits.  Which you 
ultimately do (at least on some of the issues): so for me, at least, the "it's 
radical" pitch seemed simply to be preaching to the choir.
 
2.  The meat of your argument that for-profit corporations cannot exercise 
religion is that allowing their claims would raise Establishment Clause 
problems because of effects on employees.  But to me your argument here seems 
wrong, or at least far from clear.  For one thing, even if the Establishment 
Clause does play a role here, that may be a reason why wecan countenance 
certain free exercise claims by for-profit corporations.  If the Establishment 
Clause is available to limit the overreach of claims based on religious 
conscience—a unique limit on such claims and not on others—isn’t that a reason 
to bemore confident that in this context society would reach an accommodation 
that takes both important interests seriously?
 
  Moreover, you say that the fact that an exemption imposes costs on third 
parties is sufficient reason in itself to invalidate it under the Supreme 
Court's cases.  But that is not the law.  The Title VII exemption upheld 
unanimously in Amos could have been said to impose costs on employees.  But as 
Justice Brennan later explained in the Texas Monthly case, the exemption was 
upheld, "though it had some adverse effect on those holding or seeking 
employment with those organizations (if not on taxpayers generally), [because 
it] prevented potentially serious encroachments on protected religious 
freedoms."  489 U.S. at 18 n.8.  The Court treats third-party effects as 
something to be weighed against the seriousness of the “encroachment on 
religious freedom”—an approach that makes sense, given that pretty much any 
employment regulation, and therefore any exemption from it, could be said to 
affect third parties.  Your position, on the other hand, appears to be that 
"effect on third parties" is a reason to declare that no encroachment on 
religious freedom exists.  If that is so, how can there be accommodations for 
religious organizations?
 
  Second, you quote Thornton v. Caldor's statement that “[t]he First 
Amendment gives no one the right to insist that in pursuit of their own 
interests others must conform their conduct to his own religious necessities” 
(a principle that you say "matters here in a particularly powerful way").  Now, 
I understand and am actually rather sympathetic to the idea that the 
contraception mandate increases the ability of women employees with modest 
incomes to afford contraception.  But your phrasing does immediately trigger 
the response that the objecting employer is not, in fact, insisting that the 
employees “must conform their conduct to his own religious necessities.”  The 
employer is not insisting that employees refrain from using contraception, or 
from obtaining it by means other than the insurance coverage.  (In Thornton v. 
Caldor, note, the Connecticut law did actually require others to do something: 
the employer had to give the employee his Sabbath off, indeed without 
qualification or exception.)
 
There are significant questions here about the baselines from which we 
determine or measure “effects on others”: who is burdening whom, and which 
effect is more serious on the whole, in quality or quantity?  I acknowledge 
that there are also line-drawing issues that would arise were Hobby Lobby to 
win (the Jehovah’s Witness example that Marci raises, for example).  But I 
don’t think those questions are answered simply by invoking the fact that 
exempting certain employers has some effect on employees as compared with 
regulating those employers.

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
Universi

Re: Contraception Mandate

[hamilton02]

I'll wait for others to weigh in on the first, but with respect to the second, 


I thought the argument was that the employer can't be part of a system that 
involves acts by others that violate his religious beliefs.  
How does the cheap supplementary plan for transfusions solve the Jehovahs 
Witness's being part of a system that 
involves acts that violate his religious beliefs?  Is Hobby Lobby willing to 
provide a supplementary, inexpensive plan for contraception?  




Marci







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





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Tue, Nov 26, 2013 5:21 pm
Subject: RE: Contraception Mandate




  I’m not Brad, but I thought I’d put my two cents’ worth in:
 
Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender, 

can tailor their salary and benefit plans according to religious beliefs and 
gender?   
 
  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

 

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?  
 
  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions). 
 
  Eugene



___
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messages to others.

RE: Contraception Mandate

[Berg, Thomas C.]

Thanks, Nelson.  This is an interesting piece, and I respect the arguments on 
both sides.  But I have a couple of critical reactions:



1.  I wonder whether it's really helpful or effective to start by dismissing an 
argument as something "off the wall" that somehow, inexplicably, has gone 
mainstream.  The judges on both sides of this issue have advanced serious 
arguments, and I'm more inclined to concentrate on their merits.  Which you 
ultimately do (at least on some of the issues): so for me, at least, the "it's 
radical" pitch seemed simply to be preaching to the choir.



2.  The meat of your argument that for-profit corporations cannot exercise 
religion is that allowing their claims would raise Establishment Clause 
problems because of effects on employees.  But to me your argument here seems 
wrong, or at least far from clear.  For one thing, even if the Establishment 
Clause does play a role here, that may be a reason why we can countenance 
certain free exercise claims by for-profit corporations.  If the Establishment 
Clause is available to limit the overreach of claims based on religious 
conscience-a unique limit on such claims and not on others-isn't that a reason 
to be more confident that in this context society would reach an accommodation 
that takes both important interests seriously?



  Moreover, you say that the fact that an exemption imposes costs on third 
parties is sufficient reason in itself to invalidate it under the Supreme 
Court's cases.  But that is not the law.  The Title VII exemption upheld 
unanimously in Amos could have been said to impose costs on employees.  But as 
Justice Brennan later explained in the Texas Monthly case, the exemption was 
upheld, "though it had some adverse effect on those holding or seeking 
employment with those organizations (if not on taxpayers generally), [because 
it] prevented potentially serious encroachments on protected religious 
freedoms."  489 U.S. at 18 n.8.  The Court treats third-party effects as 
something to be weighed against the seriousness of the "encroachment on 
religious freedom"-an approach that makes sense, given that pretty much any 
employment regulation, and therefore any exemption from it, could be said to 
affect third parties.  Your position, on the other hand, appears to be that 
"effect on third parties" is a reason to declare that no encroachment on 
religious freedom exists.  If that is so, how can there be accommodations for 
religious organizations?



  Second, you quote Thornton v. Caldor's statement that "[t]he First 
Amendment gives no one the right to insist that in pursuit of their own 
interests others must conform their conduct to his own religious necessities" 
(a principle that you say "matters here in a particularly powerful way").  Now, 
I understand and am actually rather sympathetic to the idea that the 
contraception mandate increases the ability of women employees with modest 
incomes to afford contraception.  But your phrasing does immediately trigger 
the response that the objecting employer is not, in fact, insisting that the 
employees "must conform their conduct to his own religious necessities."  The 
employer is not insisting that employees refrain from using contraception, or 
from obtaining it by means other than the insurance coverage.  (In Thornton v. 
Caldor, note, the Connecticut law did actually require others to do something: 
the employer had to give the employee his Sabbath off, indeed without 
qualification or exception.)



There are significant questions here about the baselines from which we 
determine or measure "effects on others": who is burdening whom, and which 
effect is more serious on the whole, in quality or quantity?  I acknowledge 
that there are also line-drawing issues that would arise were Hobby Lobby to 
win (the Jehovah's Witness example that Marci raises, for example).  But I 
don't think those questions are answered simply by invoking the fact that 
exempting certain employers has some effect on employees as compared with 
regulating those employers.

-

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) 962-4996

E-mail: tcb...@stthomas.edu

SSRN: http://ssrn.com/author='261564

Weblog: http://www.mirrorofjustice.blogs.com





-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate







Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting 
on today's cert. grant. We emphasize three differences between these cases and 
Citizens United, including the significant Establ

RE: Contraception Mandate

[Volokh, Eugene]

  I'm not Brad, but I thought I'd put my two cents' worth in:

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?

  I should think that, whether the company is for-profit or 
non-profit (and corporation or sole proprietorship), the ban on discrimination 
might well impose a substantial burden on the employer -- if the employer feels 
a religious obligation to discriminate -- but would be upheld under strict 
scrutiny, no?  But I take it that the case for the contraception mandate being 
narrowly tailored to a compelling government interest is different from the 
case for Title VII being thus narrowly tailored.

Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?

  There too the question -- whether as to a for-profit or a 
non-profit, and corporation or sole proprietorship -- would be whether the law 
is narrowly tailored to a compelling government interest, or whether the 
government has some other less restrictive means of serving the interest (e.g., 
offering what would likely be a very cheap supplementary insurance plan 
covering only blood transfusions, for anyone who has such an exclusion and who 
just needs the transfusions).

  Eugene
___
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: Contraception Mandate

[hamilton02]

Brad-Is it your view that for-profit companies over 50 employees (those 
affected here), who are subject to Title VII, and may not discriminate on the 
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and 
gender?   


Separately, what is your view on whether a Jehovah's Witness for-profit company 
can exclude blood transfusions as part of its benefits plan?  




Thanks 


Marci




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





-Original Message-
From: Brad Pardee 
To: 'Law & Religion issues for Law Academics' 
Sent: Tue, Nov 26, 2013 4:57 pm
Subject: RE: Contraception Mandate


There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.

Brad Pardee

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 

Nelson Tebbe
___
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posted; people can read the Web archives; and list members can (rightly or
wrongly) forward the messages to others.


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RE: Contraception Mandate

[Brad Pardee]

There is a problem with using, as the article does, the quote from Justice
Learned Hand that "[t]he First Amendment gives no one the right to insist
that in pursuit of their own interests others must conform their conduct to
his own religious necessities."  If Hobby Lobby was stating that, because
the owners oppose contraception, no employees are allowed to use
contraception, then this would be a valid argument.  That is not the case
here, though.  By being compelled to provide contraception coverage for
their employees, the owners of Hobby Lobby are being forced to act in a way
that is in direct opposition to the teachings of their faith.  Nobody is
arguing that, based on the owners' religious beliefs,  the employees
shouldn't be permitted to access contraception if that is their choice.  By
ruling against Hobby Lobby, the Court will be telling us that nobody who is
pro-life can own a large company unless they are willing to check their
faith at the door.  I'm not sure that fits any definition of religious
freedom that I'm aware of.

Brad Pardee

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate



Here's a Slate piece that I wrote with Micah Schwartzman (Virginia),
commenting on today's cert. grant. We emphasize three differences between
these cases and Citizens United, including the significant Establishment
Clause ramifications of ruling in favor of the corporations here. We link to
important work by Fred Gedicks developing the nonestablishment argument.

http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamac
are_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm
l 

Nelson Tebbe
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Re: Contraception mandate - Lee

[Marty Lederman]

Chip and I are not that far apart.

I agree that both Braunfeld and Lee asserted that regulation of their
business affairs burdened their own, personal religious liberty.  The
Greens make the same claim in Hobby Lobby.  And thus they would surely have
standing to sue on their own behalf . . . if they had not incorporated.  As
I said, there are doctrines in corporate law, discussing in some of the
Hobby Lobby and Conestoga briefs and opinions, that limit the sorts of
personal claims that can be brought by the owners of corporations for
injuries alleged to themselves by virtue of legal regulation of the
corporations.  I don't know enough about that law to say whether it
precludes the Greens's claim.

Whether *Hobby Lobby* has its own religious liberty claim is a very
different question.  The claim here involves an allegation of being forced
to violate a religious obligation, which I don't quite understand in the
context of a for-profit corporation, which presumably does not have any
religious duties.  Bob Jones University raised a very different sort of
claim, if I recall correctly.


On Mon, Aug 5, 2013 at 10:25 PM, Ira Lupu  wrote:

> Braunfeld and Lee were men engaged in business, and both were asserting
> that regulation of their business affairs (Sunday Closing law in Braunfeld;
> FICA contributions in Lee) burdened their religious exercise.  Those are
> business claims of free exercise infringement. I don't see any way around
> that characterization.
>
> Neither case seems to have involved the corporate form, however, and I
> agree that the contraceptive mandate cases present that novel issue.  But
> neither the legislative history nor the pre-RFRA law will resolve it;
> whether corporate identity precludes a religious liberty claim is a
> question of first impression.  But we all can see that corporate identity
> did not preclude the claim in Bob Jones University v. U.S., and I don't
> understand the logic of allowing universities to make religious liberty
> claims but not business corporations.
>
> On the merits, I think the interests of female employees may be getting
> short changed in this discussion.  Cutter says that RLUIPA should be
> construed, in light of the Establishment Clause, to avoid shifting
> substantial costs to third parties (see TWA v. Hardison; Caldor), and that
> principle of construction must apply with equal force to RFRA.  If Hobby
> Lobby (and others like it) are exempt from the mandate, the firm's female
> employees will be made worse off; they will have to pay for their own
> pregnancy prevention services.  (Yes, I know the scheme is under-inclusive,
> but that does not make the cost-shifting problem go away with respect to
> those who are covered). Of course, the question is who should pay for these
> services -- the employer, the employees, or the government.  Anyone who
> thinks RFRA dictates a straightforward answer to that problem is just
> seeing in RFRA what he or she hopes to see.
>
>
> On Mon, Aug 5, 2013 at 9:53 PM, Marty Lederman 
> wrote:
>
>> Perhaps it's a minor point, and I'm very reluctant ever to disagree with
>> Chip!, but neither Braunfeld nor Lee involved free exercise claims by
>> businesses, let alone corporations.  The free exercise claims in each case
>> were brought by and on behalf of the individuals who owned the businesses,
>> alleging burdens on their own religious exercise (and, I believe, the
>> exercise of the employees in Lee, as well, if memory serves).
>>
>> No one disputes that in Hobby Lobby and other like cases, the individual
>> owners have alleged burdens on their own religious exercise.  But there are
>> serious questions whether those burdens are ameliorated to a material
>> degree by their choice to incorporate (thus shifting all liabilities and
>> duties to the corporation); and, as I understand it, another serious
>> question whether, as a matter of corporations law, the owners have
>> abandoned their right to assert personal religious liberty claims by
>> incorporating (bitter with the sweet, etc.).
>>
>> In any event, even if the right answer is that the Greens' own RFRA
>> claims are viable, that does not begin to answer the question whether the
>> for-profit corporation itself can sue for an alleged burden on *its 
>> *religious
>> exercise.  FWIW, I find it very difficult to understand how a for-profit
>> corporation can assert the sort of claim at issue in these cases, namely,
>> that compliance with the law would force them to violate a religious
>> obligation.  For-profit corporations, as such, don't have any religious
>> obligations, far as I know.
>>
>>
>> On Mon, Aug 5, 2013 at 8:57 PM, Ira Lupu  wrote:
>>
>>> RFRA is designed to codify the pre-Smith free exercise law.  That law
>>> includes Braunfeld and Lee, both of which involve free exercise claims by
>>> for-profit businesses.  Neither opinion even hints at the idea that such
>>> enterprises cannot raise claims under the free exercise clause. That is far
>>> more 

Re: Contraception mandate - Lee

[Ira Lupu]

Braunfeld and Lee were men engaged in business, and both were asserting
that regulation of their business affairs (Sunday Closing law in Braunfeld;
FICA contributions in Lee) burdened their religious exercise.  Those are
business claims of free exercise infringement. I don't see any way around
that characterization.

Neither case seems to have involved the corporate form, however, and I
agree that the contraceptive mandate cases present that novel issue.  But
neither the legislative history nor the pre-RFRA law will resolve it;
whether corporate identity precludes a religious liberty claim is a
question of first impression.  But we all can see that corporate identity
did not preclude the claim in Bob Jones University v. U.S., and I don't
understand the logic of allowing universities to make religious liberty
claims but not business corporations.

On the merits, I think the interests of female employees may be getting
short changed in this discussion.  Cutter says that RLUIPA should be
construed, in light of the Establishment Clause, to avoid shifting
substantial costs to third parties (see TWA v. Hardison; Caldor), and that
principle of construction must apply with equal force to RFRA.  If Hobby
Lobby (and others like it) are exempt from the mandate, the firm's female
employees will be made worse off; they will have to pay for their own
pregnancy prevention services.  (Yes, I know the scheme is under-inclusive,
but that does not make the cost-shifting problem go away with respect to
those who are covered). Of course, the question is who should pay for these
services -- the employer, the employees, or the government.  Anyone who
thinks RFRA dictates a straightforward answer to that problem is just
seeing in RFRA what he or she hopes to see.


On Mon, Aug 5, 2013 at 9:53 PM, Marty Lederman wrote:

> Perhaps it's a minor point, and I'm very reluctant ever to disagree with
> Chip!, but neither Braunfeld nor Lee involved free exercise claims by
> businesses, let alone corporations.  The free exercise claims in each case
> were brought by and on behalf of the individuals who owned the businesses,
> alleging burdens on their own religious exercise (and, I believe, the
> exercise of the employees in Lee, as well, if memory serves).
>
> No one disputes that in Hobby Lobby and other like cases, the individual
> owners have alleged burdens on their own religious exercise.  But there are
> serious questions whether those burdens are ameliorated to a material
> degree by their choice to incorporate (thus shifting all liabilities and
> duties to the corporation); and, as I understand it, another serious
> question whether, as a matter of corporations law, the owners have
> abandoned their right to assert personal religious liberty claims by
> incorporating (bitter with the sweet, etc.).
>
> In any event, even if the right answer is that the Greens' own RFRA claims
> are viable, that does not begin to answer the question whether the
> for-profit corporation itself can sue for an alleged burden on *its *religious
> exercise.  FWIW, I find it very difficult to understand how a for-profit
> corporation can assert the sort of claim at issue in these cases, namely,
> that compliance with the law would force them to violate a religious
> obligation.  For-profit corporations, as such, don't have any religious
> obligations, far as I know.
>
>
> On Mon, Aug 5, 2013 at 8:57 PM, Ira Lupu  wrote:
>
>> RFRA is designed to codify the pre-Smith free exercise law.  That law
>> includes Braunfeld and Lee, both of which involve free exercise claims by
>> for-profit businesses.  Neither opinion even hints at the idea that such
>> enterprises cannot raise claims under the free exercise clause. That is far
>> more persuasive on the point than any undisclosed legislative history of
>> RLPA.  So Jim Oleske's comments on this are just spot-on. Of course, this
>> analytic approach does not answer the separate question re: corporate free
>> exercise claims.  But Lee's dictum is NOT just about taxes; it is about
>> expectations and equities of employers and their employees.
>>
>> There is a deeper point lurking here.  How does a statute like RFRA
>> "codify" the nuances of opinions like Lee (with its suggestion that
>> commercial businesses must accept ordinary market regulation), or Yoder,
>> which so heavily emphasizes the particular historical and cultural
>> characteristics of the Old Order Amish? Shameless plug for ancient work --
>> I wrote about this problem in 1992, in a piece (in the Va. L. Rev.)
>> entitled "Statutes Revolving in Constitutional Law Orbits," where I
>> discussed the problems of interpreting statutes designed to codify judicial
>> opinions in constitutional cases. The article uses RFRA (not yet enacted)
>> as a prime example of the problem.
>>
>> One more point about RFRA --no one showed up to oppose it in 1991 or
>> 1992. Even in 1993, the only opposition was from state AG's, concerned
>> about prisons.  I was (and remai

Re: Contraception mandate - Lee

[Marty Lederman]

Perhaps it's a minor point, and I'm very reluctant ever to disagree with
Chip!, but neither Braunfeld nor Lee involved free exercise claims by
businesses, let alone corporations.  The free exercise claims in each case
were brought by and on behalf of the individuals who owned the businesses,
alleging burdens on their own religious exercise (and, I believe, the
exercise of the employees in Lee, as well, if memory serves).

No one disputes that in Hobby Lobby and other like cases, the individual
owners have alleged burdens on their own religious exercise.  But there are
serious questions whether those burdens are ameliorated to a material
degree by their choice to incorporate (thus shifting all liabilities and
duties to the corporation); and, as I understand it, another serious
question whether, as a matter of corporations law, the owners have
abandoned their right to assert personal religious liberty claims by
incorporating (bitter with the sweet, etc.).

In any event, even if the right answer is that the Greens' own RFRA claims
are viable, that does not begin to answer the question whether the
for-profit corporation itself can sue for an alleged burden on *its *religious
exercise.  FWIW, I find it very difficult to understand how a for-profit
corporation can assert the sort of claim at issue in these cases, namely,
that compliance with the law would force them to violate a religious
obligation.  For-profit corporations, as such, don't have any religious
obligations, far as I know.

On Mon, Aug 5, 2013 at 8:57 PM, Ira Lupu  wrote:

> RFRA is designed to codify the pre-Smith free exercise law.  That law
> includes Braunfeld and Lee, both of which involve free exercise claims by
> for-profit businesses.  Neither opinion even hints at the idea that such
> enterprises cannot raise claims under the free exercise clause. That is far
> more persuasive on the point than any undisclosed legislative history of
> RLPA.  So Jim Oleske's comments on this are just spot-on. Of course, this
> analytic approach does not answer the separate question re: corporate free
> exercise claims.  But Lee's dictum is NOT just about taxes; it is about
> expectations and equities of employers and their employees.
>
> There is a deeper point lurking here.  How does a statute like RFRA
> "codify" the nuances of opinions like Lee (with its suggestion that
> commercial businesses must accept ordinary market regulation), or Yoder,
> which so heavily emphasizes the particular historical and cultural
> characteristics of the Old Order Amish? Shameless plug for ancient work --
> I wrote about this problem in 1992, in a piece (in the Va. L. Rev.)
> entitled "Statutes Revolving in Constitutional Law Orbits," where I
> discussed the problems of interpreting statutes designed to codify judicial
> opinions in constitutional cases. The article uses RFRA (not yet enacted)
> as a prime example of the problem.
>
> One more point about RFRA --no one showed up to oppose it in 1991 or 1992.
> Even in 1993, the only opposition was from state AG's, concerned about
> prisons.  I was (and remain) a RFRA skeptic.  I testified (at a House
> subcommittee hearing) in 1992 that RFRA was unconstitutional as applied to
> the states, and that it "over-restored" free exercise principles (e.g.,
> protected military personnel in ways that Goldman v. Weinberger precluded'
> likewise prisoners in light of O'Lone.)).  The RFRA proponets at that
> hearing treated me like a skunk at a garden party.  I think members of
> Congress were aware of none of the nuances we have been discussing.  So
> figuring out the statutory meaning re: covering for-profit corporations is
> an exercise in complete futility. No intent was formed on this question,
> and federal statutory definitions make a corporation a person unless the
> context indicates otherwise. Does it?
>
>
> On Mon, Aug 5, 2013 at 8:10 PM, Perry Dane  wrote:
>
>> Just a couple of points on the relevance of Lee:
>>
>> First, I agree with James Oleske that fitting Lee into the analysis is
>> important.  I was more concerned in my short comment (
>> http://ssrn.com/abstract=**2296635  )
>>  to make the point that questions such as the for-profit status of the
>> employer should be addressed as part of the compelling interest analysis
>> rather than at the threshold.
>>
>> Second, as to that compelling interest analysis:   The quoted line from
>> Lee needs to be understood, it seems to me, in the light of the Court's
>> more general point about the government's compelling interest in collecting
>> social security (and other) taxes.  As I point out in my comment,
>> governmental interest in the religion-based exemptions context should
>> usually be measured "at the margin" and not in toto.  Sometimes, though,
>> the government has an interest, even at the margin, in applying a given
>> rule in all cases.  The Court in Lee held that the government had a
>> compelling interest, not only in collectin

Re: Contraception mandate - Lee

[Ira Lupu]

RFRA is designed to codify the pre-Smith free exercise law.  That law
includes Braunfeld and Lee, both of which involve free exercise claims by
for-profit businesses.  Neither opinion even hints at the idea that such
enterprises cannot raise claims under the free exercise clause. That is far
more persuasive on the point than any undisclosed legislative history of
RLPA.  So Jim Oleske's comments on this are just spot-on. Of course, this
analytic approach does not answer the separate question re: corporate free
exercise claims.  But Lee's dictum is NOT just about taxes; it is about
expectations and equities of employers and their employees.

There is a deeper point lurking here.  How does a statute like RFRA
"codify" the nuances of opinions like Lee (with its suggestion that
commercial businesses must accept ordinary market regulation), or Yoder,
which so heavily emphasizes the particular historical and cultural
characteristics of the Old Order Amish? Shameless plug for ancient work --
I wrote about this problem in 1992, in a piece (in the Va. L. Rev.)
entitled "Statutes Revolving in Constitutional Law Orbits," where I
discussed the problems of interpreting statutes designed to codify judicial
opinions in constitutional cases. The article uses RFRA (not yet enacted)
as a prime example of the problem.

One more point about RFRA --no one showed up to oppose it in 1991 or 1992.
Even in 1993, the only opposition was from state AG's, concerned about
prisons.  I was (and remain) a RFRA skeptic.  I testified (at a House
subcommittee hearing) in 1992 that RFRA was unconstitutional as applied to
the states, and that it "over-restored" free exercise principles (e.g.,
protected military personnel in ways that Goldman v. Weinberger precluded'
likewise prisoners in light of O'Lone.)).  The RFRA proponets at that
hearing treated me like a skunk at a garden party.  I think members of
Congress were aware of none of the nuances we have been discussing.  So
figuring out the statutory meaning re: covering for-profit corporations is
an exercise in complete futility. No intent was formed on this question,
and federal statutory definitions make a corporation a person unless the
context indicates otherwise. Does it?


On Mon, Aug 5, 2013 at 8:10 PM, Perry Dane  wrote:

> Just a couple of points on the relevance of Lee:
>
> First, I agree with James Oleske that fitting Lee into the analysis is
> important.  I was more concerned in my short comment (
> http://ssrn.com/abstract=**2296635  )
>  to make the point that questions such as the for-profit status of the
> employer should be addressed as part of the compelling interest analysis
> rather than at the threshold.
>
> Second, as to that compelling interest analysis:   The quoted line from
> Lee needs to be understood, it seems to me, in the light of the Court's
> more general point about the government's compelling interest in collecting
> social security (and other) taxes.  As I point out in my comment,
> governmental interest in the religion-based exemptions context should
> usually be measured "at the margin" and not in toto.  Sometimes, though,
> the government has an interest, even at the margin, in applying a given
> rule in all cases.  The Court in Lee held that the government had a
> compelling interest, not only in collecting taxes from Lee as such, but in
> maintaining a "comprehensive" system with "mandatory and continuous
> participation."  This makes some sense, not only for actuarial reasons, but
> because (I extrapolate here) rendering the tax in some sense "voluntary"
> would make it more difficult to enforce it against everybody else.  (Folks
> who are being told to pay money to the government justifiably resent it
> when other folks get a pass.)  Moreover, as the Court pointed out, lots of
> religious groups object to lots of different expenditures to which tax
> revenue is applied, so that allowing an exemption would open a real
> floodgate.  Given that systemic interest, the Court concluded that trying
> to carve out a constitutional exception would be infeasible.  At that
> point, the Court had one loose end to tie up: that Congress had in fact
> legislated an exception for self-employed religious objectors.  It was in
> the context of distinguishing that statutory exception from the claimed
> constitutional exemption that the Court wrote that:  "Self-employed persons
> in a religious community having its own "welfare" system are
> distinguishable from the generality of wage earners employed by others.
>  Congress and the courts have been sensitive to the needs flowing from the
> Free Exercise Clause, but every person cannot be shielded from all the
> burdens incident to exercising every aspect of the right to practice
> religious beliefs. When followers of a particular sect enter into
> commercial activity as a matter of choice, the limits they accept on their
> own conduct as a matter of conscience and faith are not to be su

Re: Contraception mandate

[James Oleske]

That strikes me as a perfectly fine argument, but one that goes to the
question of whether there actually were any relevant common understandings
of the language in 1997, not the question of whether the 1997 legislative
history would be irrelevant even if such understandings actually existed.

Of course, when courts look for common understandings in legislative
debates, they tend to look to the evidence on the record and not
unarticulated positions. The House report, both sets of dissenting views in
the report, and testimony from multiple opponents of the bill all assume
individuals running businesses like landlords could invoke RLPA. Is there
anything on the record running contrary to this apparent common
understanding?

If not, I tend to think that the RLPA legislative history, combined with
Lee, makes it very difficult to argue that all for-profit commercial
activity is categorically excluded from RFRA protections.

Less clear is whether for-profit corporations are categorically excluded (I
see Marci has sent a separate email arguing that inclusion of for-profit
corporations was not contemplated during the original RFRA debate; if
that's correct, when combined with the ambiguity of the 1997 legislative
record on the issue, I'd be inclined to conclude that neither the
legislative history of RFRA or RLPA is of very much help on the
corporate-coverage issue).

Even less clear is, assuming for-profit corporations are not categorically
excluded from RFRA, how might protection for those corporations nonetheless
be limited by the "commercial activity" language in Lee (the issue the
Hobby Lobby court neglected to address -- which brings me back to where I
started, and where I should probably step out of this discussion for the
time being).

Best,

Jim


On Fri, Aug 2, 2013 at 9:22 AM, Marci Hamilton  wrote:

> My point yesterday is that the Coalition am the ACLU are not both sides.
>  Far from it
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 2, 2013, at 12:09 PM, James Oleske  wrote:
>
> Marci - I agree that if one side or the other in the 1997 debate was
> attempting to make after-the-fact legislative history for RFRA, that
> history would be of marginal value. But that's not the theory of relevance
> that Doug offers in his article and that I asked about yesterday. Doug
> offered the theory that, if both sides in the 1997 had a common
> understanding about the language common to RLPA and RFRA, that would be
> relevant to interpreting RFRA. What's wrong with that theory as a general
> matter? To be sure, on the specific issue of whether for-profit *corporations
> *can invoke a defense under the language, the 1997 legislative history
> indicates that there was not a common understanding. But in cases where
> there was a common understanding on the record (as appears there might have
> been concerning individual landlords), I'm not sure why that common
> understanding wouldn't be a relevant interpretive tool (not the only tool,
> of course, but one such tool).
>
> Marc - Prior to reading the ACLU testimony yesterday, I would have been
> inclined to agree with your suggestion. But the ACLU testimony actually
> puts the issue in precisely the same terms we seem to be discussing it
> today ("The question of whether a corporate employer or corporate landlord
> may raise a religious liberty defense is less clear than whether an
> individual serving as an employer or landlord may raise that defense."). So
> I'm inclined to think the 1997 legislative history is relevant to our
> discussion of cases like Hobby Lobby case precisely because it shows that
> there was *not* a common understanding about RFRA protecting for-profit
> corporations, but there may have been a common understanding about RFRA
> protecting individuals engaged in commercial activity.
>
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:
>
>> Except that 1997 itself is an irrelevant date.  The relevant dates are
>> 1990-93, during the enactment of RFRA.
>>
>> Marci
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>>
>> IS it possible that the search for legislative history on the question of
>> whether in 1997 Congress thought corporations could benefit from religious
>> liberty provisions is anachronistic .Today, that question is colored by
>> one’ s feelings towards Citizens United; in 1997 ( and especially when
>> arguing to a political body like Congress and in an effort to muster public
>> opinion) the issue was cast in less  abstract terms. 
>>
>> Marc  Stern
>>
>> ** **
>>
>> ___
> 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
>

Re: Contraception mandate

[Marci Hamilton]

Here are some unassailable facts about RFRAs enactment that make 1997 too late 
to bring for profit corps under RFRAs intended reach 

1.  The vast majority of RFRA's Legis history is not about its actual content 
but rather testimony critical of Smith and the Supreme Court.

2.  The Coalition had an express agreement not to tell members or the press 
what particular laws each hoped to overcome.   They needed to stay mum on their 
individual agendas to remain at the table together.

3.  The abstract constitutional law level of scrutiny formula drove discussion 
away from specifics.

4.  No one remotely hinted that it would be applicable to for-profit 
corporations or that there was any corporation in the US intent on avoiding 
laws through RFRA 

5.  Had the ACLU, Americans United, and People for the American Way and the 
Democrats understood RFRA at the time as the anti-civil rights bill the 10th 
Cir found it to be, it would have gone nowhere.  Inconceivable.  One of its 
virtues for members was anything loved by the left and right had to be good.  

6.  RFRA's feel-good, opaque formula led members not to challenge the lobbyists 
to explain its actual impact.  The few examples involved a minyan and autopsies.

Nothing in this history supports a claim that RFRA was intended to cover 
for-profit corporations.

Marci


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



On Aug 2, 2013, at 12:09 PM, James Oleske  wrote:

> Marci - I agree that if one side or the other in the 1997 debate was 
> attempting to make after-the-fact legislative history for RFRA, that history 
> would be of marginal value. But that's not the theory of relevance that Doug 
> offers in his article and that I asked about yesterday. Doug offered the 
> theory that, if both sides in the 1997 had a common understanding about the 
> language common to RLPA and RFRA, that would be relevant to interpreting 
> RFRA. What's wrong with that theory as a general matter? To be sure, on the 
> specific issue of whether for-profit corporations can invoke a defense under 
> the language, the 1997 legislative history indicates that there was not a 
> common understanding. But in cases where there was a common understanding on 
> the record (as appears there might have been concerning individual 
> landlords), I'm not sure why that common understanding wouldn't be a relevant 
> interpretive tool (not the only tool, of course, but one such tool). 
> 
> Marc - Prior to reading the ACLU testimony yesterday, I would have been 
> inclined to agree with your suggestion. But the ACLU testimony actually puts 
> the issue in precisely the same terms we seem to be discussing it today ("The 
> question of whether a corporate employer or corporate landlord may raise a 
> religious liberty defense is less clear than whether an  individual serving 
> as an employer or landlord may raise that defense."). So I'm inclined to 
> think the 1997 legislative history is relevant to our discussion of cases 
> like Hobby Lobby case precisely because it shows that there was not a common 
> understanding about RFRA protecting for-profit corporations, but there may 
> have been a common understanding about RFRA protecting individuals engaged in 
> commercial activity. 
> 
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:
>> Except that 1997 itself is an irrelevant date.  The relevant dates are 
>> 1990-93, during the enactment of RFRA.
>> 
>> Marci
>> 
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton 
>> 
>> 
>> 
>> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>> 
>>> IS it possible that the search for legislative history on the question of 
>>> whether in 1997 Congress thought corporations could benefit from religious 
>>> liberty provisions is anachronistic .Today, that question is colored by 
>>> one’ s feelings towards Citizens United; in 1997 ( and especially when 
>>> arguing to a political body like Congress and in an effort to muster public 
>>> opinion) the issue was cast in less  abstract terms.
>>> 
>>> Marc  Stern
>>> 
> ___
> 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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Anyon

Re: Contraception mandate

[Marci Hamilton]

My point yesterday is that the Coalition am the ACLU are not both sides.  Far 
from it

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



On Aug 2, 2013, at 12:09 PM, James Oleske  wrote:

> Marci - I agree that if one side or the other in the 1997 debate was 
> attempting to make after-the-fact legislative history for RFRA, that history 
> would be of marginal value. But that's not the theory of relevance that Doug 
> offers in his article and that I asked about yesterday. Doug offered the 
> theory that, if both sides in the 1997 had a common understanding about the 
> language common to RLPA and RFRA, that would be relevant to interpreting 
> RFRA. What's wrong with that theory as a general matter? To be sure, on the 
> specific issue of whether for-profit corporations can invoke a defense under 
> the language, the 1997 legislative history indicates that there was not a 
> common understanding. But in cases where there was a common understanding on 
> the record (as appears there might have been concerning individual 
> landlords), I'm not sure why that common understanding wouldn't be a relevant 
> interpretive tool (not the only tool, of course, but one such tool). 
> 
> Marc - Prior to reading the ACLU testimony yesterday, I would have been 
> inclined to agree with your suggestion. But the ACLU testimony actually puts 
> the issue in precisely the same terms we seem to be discussing it today ("The 
> question of whether a corporate employer or corporate landlord may raise a 
> religious liberty defense is less clear than whether an  individual serving 
> as an employer or landlord may raise that defense."). So I'm inclined to 
> think the 1997 legislative history is relevant to our discussion of cases 
> like Hobby Lobby case precisely because it shows that there was not a common 
> understanding about RFRA protecting for-profit corporations, but there may 
> have been a common understanding about RFRA protecting individuals engaged in 
> commercial activity. 
> 
> On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:
>> Except that 1997 itself is an irrelevant date.  The relevant dates are 
>> 1990-93, during the enactment of RFRA.
>> 
>> Marci
>> 
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton 
>> 
>> 
>> 
>> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>> 
>>> IS it possible that the search for legislative history on the question of 
>>> whether in 1997 Congress thought corporations could benefit from religious 
>>> liberty provisions is anachronistic .Today, that question is colored by 
>>> one’ s feelings towards Citizens United; in 1997 ( and especially when 
>>> arguing to a political body like Congress and in an effort to muster public 
>>> opinion) the issue was cast in less  abstract terms.
>>> 
>>> Marc  Stern
>>> 
> ___
> 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
> 
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> 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: Contraception mandate

[James Oleske]

Marci - I agree that if one side or the other in the 1997 debate was
attempting to make after-the-fact legislative history for RFRA, that
history would be of marginal value. But that's not the theory of relevance
that Doug offers in his article and that I asked about yesterday. Doug
offered the theory that, if both sides in the 1997 had a common
understanding about the language common to RLPA and RFRA, that would be
relevant to interpreting RFRA. What's wrong with that theory as a general
matter? To be sure, on the specific issue of whether for-profit *corporations
*can invoke a defense under the language, the 1997 legislative history
indicates that there was not a common understanding. But in cases where
there was a common understanding on the record (as appears there might have
been concerning individual landlords), I'm not sure why that common
understanding wouldn't be a relevant interpretive tool (not the only tool,
of course, but one such tool).

Marc - Prior to reading the ACLU testimony yesterday, I would have been
inclined to agree with your suggestion. But the ACLU testimony actually
puts the issue in precisely the same terms we seem to be discussing it
today ("The question of whether a corporate employer or corporate landlord
may raise a religious liberty defense is less clear than whether an
individual serving as an employer or landlord may raise that defense."). So
I'm inclined to think the 1997 legislative history is relevant to our
discussion of cases like Hobby Lobby case precisely because it shows that
there was *not* a common understanding about RFRA protecting for-profit
corporations, but there may have been a common understanding about RFRA
protecting individuals engaged in commercial activity.

On Fri, Aug 2, 2013 at 8:17 AM, Marci Hamilton  wrote:

> Except that 1997 itself is an irrelevant date.  The relevant dates are
> 1990-93, during the enactment of RFRA.
>
> Marci
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:
>
> IS it possible that the search for legislative history on the question of
> whether in 1997 Congress thought corporations could benefit from religious
> liberty provisions is anachronistic .Today, that question is colored by
> one’ s feelings towards Citizens United; in 1997 ( and especially when
> arguing to a political body like Congress and in an effort to muster public
> opinion) the issue was cast in less  abstract terms. 
>
> Marc  Stern
>
> ** **
>
>
___
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Re: Contraception mandate

[Marci Hamilton]

Except that 1997 itself is an irrelevant date.  The relevant dates are 1990-93, 
during the enactment of RFRA.

Marci

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



On Aug 2, 2013, at 10:30 AM, Marc Stern  wrote:

> IS it possible that the search for legislative history on the question of 
> whether in 1997 Congress thought corporations could benefit from religious 
> liberty provisions is anachronistic .Today, that question is colored by one’ 
> s feelings towards Citizens United; in 1997 ( and especially when arguing to 
> a political body like Congress and in an effort to muster public opinion) the 
> issue was cast in less  abstract terms.
> Marc  Stern
>  
>  
> 0From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
> Sent: Thursday, August 01, 2013 10:02 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Contraception mandate
>  
> I know I'm not the listmod, but could we please keep the posts on topic for 
> the listserv?
> 
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
> 
> On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene"  wrote:
> 
> No, Marci.  You personalized this.
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Thursday, August 01, 2013 5:20 PM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Contraception mandate
>  
> I was not particularly interested in solely Doug's statements at the time, 
> but rather his reasoning in his new piece.   Marc and now Eugene have 
> personalized this.
> ___
> 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: Contraception mandate

[Marc Stern]

IS it possible that the search for legislative history on the question of 
whether in 1997 Congress thought corporations could benefit from religious 
liberty provisions is anachronistic .Today, that question is colored by one’ s 
feelings towards Citizens United; in 1997 ( and especially when arguing to a 
political body like Congress and in an effort to muster public opinion) the 
issue was cast in less  abstract terms.
Marc  Stern


0From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Cruz
Sent: Thursday, August 01, 2013 10:02 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

I know I'm not the listmod, but could we please keep the posts on topic for the 
listserv?
David B. Cruz
Professor of Law
University of Southern California Gould School of Law
Los Angeles, CA 90089-0071
U.S.A.

On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:
No, Marci.  You personalized this.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
___
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Re: Contraception mandate

[James Oleske]

In poking around further in the legislative history of RLPA, I think there
is evidence that there might *not *have been a common understanding about
the applicability of RLPA and RFRA to for-profit *corporations* as opposed
to individual landlords:

"The question of whether a corporate employer or corporate landlord may
raise a religious liberty defense is less clear than whether an individual
serving as an employer or landlord may raise that defense."

Religious Liberty Protection Act of 1999: Hearing Before the Subcomm. on
the Constitution of the H. Comm. on the Judiciary, 106th Cong. 127
(statement of Christopher Anders, ACLU Legislative Counsel) (citing two
pre-Smith lower court decisions that went in different directions on the
issue in dicta).

As for my initial question concerning whether there was any discussion of
the import of Lee's "commercial activity" passage during the debate over
RLPA and its applicability to civil rights defendants, there does not
appear to be any such discussion in the House hearing transcript (I haven't
had a chance to look through all the submitted testimony, some of which
might include a more extended discussion of Lee).

Of course, even if Lee had been relied upon by supporters of RLPA to
assuage concerns about the proposed act's reach into the commercial
context, I'm not sure how relevant it would be to the current debate over
the earlier-enacted RFRA. I'm persuaded by Doug's argument that if both
sides in the RLPA debate has a common understanding of what the identical
RFRA and RLPA language meant, that would be helpful in interpreting RFRA,
but the scenario I asked about (one side trying to unsuccessfully assuage
the concerns of the other side) wouldn't meet that standard, and probably
falls more into the category of attempted "post-enactment legislative
history."

All of which leaves us with lingering unanswered questions about Lee, which
I continue to believe is a case that poses difficulties for leading
arguments on both sides of the contraception mandate debate.


On Thu, Aug 1, 2013 at 7:29 PM, Marty Lederman wrote:

> OK, here's an effort to get us back on the track (of the current circuit
> split):
>
> What Doug wrote was that there was a common understanding that RLPA "would
> protect for-profit *businesses* from civil rights claims *that **substantially
> burdened the owner’s free exercise of religion*."
>
> Now, it's not clear how this bears on whether and when *RFRA *protects
> for-profit corporations, since RFRA was enacted before RLPA was considered
> . . . but even if there were some basis for treating the two as coterminous
> . . . and even if RLPA would have protected the exercise of religion of the
> *owner *of a for-profit *business *(Doug points to landlords), that would
> not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga
> *-- of whether a for-profit *corporation* exercises religion; whether
> such a corporation has any religious duties that might be violated if the
> corporation complies with the ACA; and, if so, whether the HHS reg would
> substantially burden the religious exercise of the for-profit corporation
> itself.
>
>
___
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Re: Contraception mandate

[Marci Hamilton]

There is no "all" in the legislative process.   There are only competing 
interests and conflicting sides. I am not going to belabor this for this 
exchange, but as someone who was as intimately involved in this as Doug, but on 
the opposite side, his description encompasses some but not all of what was 
happening.  He can certainly speak for those who started altogether on his side 
even if they split asunder later.   That would be the Coalition and the civil 
rights groups.

He cannot speak authoritatively for those who were on the other side, 
particularly when they ultimately prevailed.

Marci

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



On Aug 1, 2013, at 9:48 PM, Marc Stern  wrote:

> An additional fact: the civil rights issue came into public view after the 
> ACLU wrote a letter to Congress-whether to the whole house or the judiciary 
> committee I don't recall- spelling out in detail the cases in which civil 
> liberties and religious liberty claims clashed. It was that letter that 
> sparked the nadler amendment and the breakup of the coalition that had 
> earlier  supported RFRA.
> Marc
> 
> - Original Message -
> From: Douglas Laycock [mailto:dlayc...@virginia.edu]
> Sent: Thursday, August 01, 2013 09:30 PM
> To: Law & Religion issues for Law Academics ; 
> hamilto...@aol.com 
> Subject: Re: Contraception mandate
> 
> RLUIPA does not apply to fair housing laws because it applies only to land 
> use regulation and institutionalized persons, and it exprssly defines land 
> use regulation as zoning and landmarking. Period. No mystery to explain. 
> 
> My recollection is that that definition was added late in the process. I have 
> not checked that. 
> 
> Before that amendment, neither I nor any other supporter assured opponents 
> that RLPA would not apply to fair housing laws. The whole fight was fueled by 
> fair housing laws.
> 
> There were negotiations about exempting large landlords and protecting small 
> landlords. But these negotiations quickly broke down because the two sides 
> were too far apart on what the size limit should be.
> 
> RLPA had other opponents, but the civil rights issue is what killed it. It is 
> not true that it was doomed by its overbreadth. It was not even obvious at 
> the time that it was doomed by the civil rights fight.
> 
> The Nadler Amendment to exclude civil rights claims was defeated in the House 
> 234-190. The unamended bill then passed the House 306-118. That lopsided yes 
> vote hardly suggests a doomed bill. Skeptics can find these votes at 145 
> Cong. Rec. H5607-08. The bill then died in the Senate without a vote. 
> 
> Both sides in the debate over the Nadler Amendment, and in the earlier 
> debates in committee, were fighting about a live issue. No one thought they 
> were making post-enactment legislative history for RFRA. They were all acting 
> on a common understanding about what the language copied from RFRA meant.
> 
> On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
> hamilto...@aol.com wrote:
>> 
>> I was not particularly interested in solely Doug's statements at the time, 
>> but rather his reasoning in his new piece.   Marc and now Eugene have 
>> personalized this.
>> There is no need for that.
>> 
>> 
>> Here is a fact:  Many following enactment of RLUIPA have stated 
>> unequivocally that the land use provisions were not intended to apply to the 
>> fair housing (i.e., civil rights) laws.  
>> Since the only legis history on RLUIPA was RLPA, that assumption (that the 
>> civil rights laws were beyond the new statute) had to come from the RLPA 
>> proceedings.   
>> What is the missing piece that explains how Doug and Marc have explained the 
>> history?
>> 
>> 
>> 
>> 
>> Marci
>> 
>> 
>> 
>> 
>> 
>> 
>> 
>> Marci A. Hamilton
>> Paul R. Verkuil Chair in Public Law
>> Benjamin N. Cardozo School of Law
>> Yeshiva University
>> 55 Fifth Avenue
>> New York, NY 10003 
>> (212) 790-0215 
>> http://sol-reform.com
>> 
>> 
>> 
>> 
>> 
>> -Original Message-
>> From: Volokh, Eugene 
>> To: Law & Religion issues for Law Academics 
>> Sent: Thu, Aug 1, 2013 7:56 pm
>> Subject: RE: Contraception mandate
>> 
>> 
>> 
>>   Indeed, Marci didn’t say Doug was “lying,” but when one says 
>> of a first-hand witness that the “history, as I knew it, was distinctive 
>> from his account,” and “Not sure how to square [Doug’s past reassurances] w 
>> Doug's current statements,” the 

Re: Contraception mandate

[Marty Lederman]

OK, here's an effort to get us back on the track (of the current circuit
split):

What Doug wrote was that there was a common understanding that RLPA "would
protect for-profit *businesses* from civil rights claims *that **substantially
burdened the owner’s free exercise of religion*."

Now, it's not clear how this bears on whether and when *RFRA *protects
for-profit corporations, since RFRA was enacted before RLPA was considered
. . . but even if there were some basis for treating the two as coterminous
. . . and even if RLPA would have protected the exercise of religion of the
*owner *of a for-profit *business *(Doug points to landlords), that would
not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga
*-- of whether a for-profit *corporation* exercises religion; whether such
a corporation has any religious duties that might be violated if the
corporation complies with the ACA; and, if so, whether the HHS reg would
substantially burden the religious exercise of the for-profit corporation
itself.



On Thu, Aug 1, 2013 at 10:01 PM, David Cruz  wrote:

> I know I'm not the listmod, but could we please keep the posts on topic
> for the listserv?
>
> David B. Cruz
> Professor of Law
> University of Southern California Gould School of Law
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene"  wrote:
>
> No, Marci.  You personalized this.
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *hamilto...@aol.com
> *Sent:* Thursday, August 01, 2013 5:20 PM
> *To:* religionlaw@lists.ucla.edu
> *Subject:* Re: Contraception mandate
>
> ** **
>
> I was not particularly interested in solely Doug's statements at the time,
> but rather his reasoning in his new piece.   Marc and now Eugene have
> personalized this.
>
>
> ___
> 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: Contraception mandate

[David Cruz]

I know I'm not the listmod, but could we please keep the posts on topic for the 
listserv?

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

On Aug 1, 2013, at 6:32 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

No, Marci.  You personalized this.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of 
hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
___
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 
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Re: Contraception mandate

[Marc Stern]

An additional fact: the civil rights issue came into public view after the ACLU 
wrote a letter to Congress-whether to the whole house or the judiciary 
committee I don't recall- spelling out in detail the cases in which civil 
liberties and religious liberty claims clashed. It was that letter that sparked 
the nadler amendment and the breakup of the coalition that had earlier  
supported RFRA.
Marc

- Original Message -
From: Douglas Laycock [mailto:dlayc...@virginia.edu]
Sent: Thursday, August 01, 2013 09:30 PM
To: Law & Religion issues for Law Academics ; 
hamilto...@aol.com 
Subject: Re: Contraception mandate

RLUIPA does not apply to fair housing laws because it applies only to land use 
regulation and institutionalized persons, and it exprssly defines land use 
regulation as zoning and landmarking. Period. No mystery to explain. 

My recollection is that that definition was added late in the process. I have 
not checked that. 

Before that amendment, neither I nor any other supporter assured opponents that 
RLPA would not apply to fair housing laws. The whole fight was fueled by fair 
housing laws.

There were negotiations about exempting large landlords and protecting small 
landlords. But these negotiations quickly broke down because the two sides were 
too far apart on what the size limit should be.

RLPA had other opponents, but the civil rights issue is what killed it. It is 
not true that it was doomed by its overbreadth. It was not even obvious at the 
time that it was doomed by the civil rights fight.

The Nadler Amendment to exclude civil rights claims was defeated in the House 
234-190. The unamended bill then passed the House 306-118. That lopsided yes 
vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. 
Rec. H5607-08. The bill then died in the Senate without a vote. 

Both sides in the debate over the Nadler Amendment, and in the earlier debates 
in committee, were fighting about a live issue. No one thought they were making 
post-enactment legislative history for RFRA. They were all acting on a common 
understanding about what the language copied from RFRA meant.

On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
 hamilto...@aol.com wrote:
>
>I was not particularly interested in solely Doug's statements at the time, but 
>rather his reasoning in his new piece.   Marc and now Eugene have personalized 
>this.
>There is no need for that.
>
>
>Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
>that the land use provisions were not intended to apply to the fair housing 
>(i.e., civil rights) laws.  
>Since the only legis history on RLUIPA was RLPA, that assumption (that the 
>civil rights laws were beyond the new statute) had to come from the RLPA 
>proceedings.   
>What is the missing piece that explains how Doug and Marc have explained the 
>history?
>
>
>
>
>Marci
>
>
>
>
>
>
>
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003 
>(212) 790-0215 
>http://sol-reform.com
>
>
>
>
>
>-----Original Message-
>From: Volokh, Eugene 
>To: Law & Religion issues for Law Academics 
>Sent: Thu, Aug 1, 2013 7:56 pm
>Subject: RE: Contraception mandate
>
>
>
>Indeed, Marci didn’t say Doug was “lying,” but when one says 
> of a first-hand witness that the “history, as I knew it, was distinctive from 
> his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
> current statements,” the implicit accusation seems to me to be pretty clear.
> 
>But I should think that this could be clearly resolved:  If Marci wants to 
>produce some quotes from Doug that are at variance with his current 
>statements, that would be very interesting.  But until any such quotes are 
>produced, I’m inclined to trust Doug.
> 
>And I agree that we should discuss facts on the listserv without stooping to 
>namecalling.
> 
>Eugene
> 
>
>
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
>Sent: Thursday, August 01, 2013 4:41 PM
>To: religionlaw@lists.ucla.edu
>Subject: Re: Contraception mandate
>
> 
>Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
>was distinctive from his account.   I think we can discuss the facts 
>
>on the listserv without having to stoop to such namecalling.
>
> 
>
>Marci
>
> 
>
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003 
>(212) 790-0215 
>http://sol-reform.com
>
>
>
> 
>
>-Original Mess

Re: Contraception mandate

[Douglas Laycock]

RLUIPA does not apply to fair housing laws because it applies only to land use 
regulation and institutionalized persons, and it exprssly defines land use 
regulation as zoning and landmarking. Period. No mystery to explain. 

My recollection is that that definition was added late in the process. I have 
not checked that. 

Before that amendment, neither I nor any other supporter assured opponents that 
RLPA would not apply to fair housing laws. The whole fight was fueled by fair 
housing laws.

There were negotiations about exempting large landlords and protecting small 
landlords. But these negotiations quickly broke down because the two sides were 
too far apart on what the size limit should be.

RLPA had other opponents, but the civil rights issue is what killed it. It is 
not true that it was doomed by its overbreadth. It was not even obvious at the 
time that it was doomed by the civil rights fight.

The Nadler Amendment to exclude civil rights claims was defeated in the House 
234-190. The unamended bill then passed the House 306-118. That lopsided yes 
vote hardly suggests a doomed bill. Skeptics can find these votes at 145 Cong. 
Rec. H5607-08. The bill then died in the Senate without a vote. 

Both sides in the debate over the Nadler Amendment, and in the earlier debates 
in committee, were fighting about a live issue. No one thought they were making 
post-enactment legislative history for RFRA. They were all acting on a common 
understanding about what the language copied from RFRA meant.

On Thu, 1 Aug 2013 20:20:28 -0400 (EDT)
 hamilto...@aol.com wrote:
>
>I was not particularly interested in solely Doug's statements at the time, but 
>rather his reasoning in his new piece.   Marc and now Eugene have personalized 
>this.
>There is no need for that.
>
>
>Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
>that the land use provisions were not intended to apply to the fair housing 
>(i.e., civil rights) laws.  
>Since the only legis history on RLUIPA was RLPA, that assumption (that the 
>civil rights laws were beyond the new statute) had to come from the RLPA 
>proceedings.   
>What is the missing piece that explains how Doug and Marc have explained the 
>history?
>
>
>
>
>Marci
>
>
>
>
>
>
>
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003 
>(212) 790-0215 
>http://sol-reform.com
>
>
>
>
>
>-Original Message-
>From: Volokh, Eugene 
>To: Law & Religion issues for Law Academics 
>Sent: Thu, Aug 1, 2013 7:56 pm
>Subject: RE: Contraception mandate
>
>
>
>Indeed, Marci didn’t say Doug was “lying,” but when one says 
> of a first-hand witness that the “history, as I knew it, was distinctive from 
> his account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
> current statements,” the implicit accusation seems to me to be pretty clear.
> 
>But I should think that this could be clearly resolved:  If Marci wants to 
>produce some quotes from Doug that are at variance with his current 
>statements, that would be very interesting.  But until any such quotes are 
>produced, I’m inclined to trust Doug.
> 
>And I agree that we should discuss facts on the listserv without stooping to 
>namecalling.
> 
>Eugene
> 
>
>
>From: religionlaw-boun...@lists.ucla.edu 
>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
>Sent: Thursday, August 01, 2013 4:41 PM
>To: religionlaw@lists.ucla.edu
>Subject: Re: Contraception mandate
>
> 
>Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
>was distinctive from his account.   I think we can discuss the facts 
>
>on the listserv without having to stoop to such namecalling.
>
> 
>
>Marci
>
> 
>
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003 
>(212) 790-0215 
>http://sol-reform.com
>
>
>
> 
>
>-Original Message-
>From: Marc Stern 
>To: religionlaw 
>Sent: Thu, Aug 1, 2013 7:34 pm
>Subject: Re: Contraception mandate
>
>Saw it. In the next post, she accuses doug of lying to left wing groups about 
>RLPA and civil rights. I've responded defending Doug.
>Marc
> 
>
>
>
>
>
>
>___
>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 

RE: Contraception mandate

[Volokh, Eugene]

No, Marci.  You personalized this.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 5:20 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
There is no need for that.

Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
that the land use provisions were not intended to apply to the fair housing 
(i.e., civil rights) laws.
Since the only legis history on RLUIPA was RLPA, that assumption (that the 
civil rights laws were beyond the new statute) had to come from the RLPA 
proceedings.
What is the missing piece that explains how Doug and Marc have explained the 
history?


Marci



Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Volokh, Eugene mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 1, 2013 7:56 pm
Subject: RE: Contraception mandate
Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.

But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.

And I agree that we should discuss facts on the listserv without stooping to 
namecalling.

Eugene

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 hamilto...@aol.com<mailto:hamilto...@aol.com>
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
Subject: Re: Contraception mandate

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Marc Stern mailto:ste...@ajc.org>>
To: religionlaw mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate
Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc


___

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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>

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Re: Contraception mandate

[hamilton02]

I was not particularly interested in solely Doug's statements at the time, but 
rather his reasoning in his new piece.   Marc and now Eugene have personalized 
this.
There is no need for that.


Here is a fact:  Many following enactment of RLUIPA have stated unequivocally 
that the land use provisions were not intended to apply to the fair housing 
(i.e., civil rights) laws.  
Since the only legis history on RLUIPA was RLPA, that assumption (that the 
civil rights laws were beyond the new statute) had to come from the RLPA 
proceedings.   
What is the missing piece that explains how Doug and Marc have explained the 
history?




Marci







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





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
Sent: Thu, Aug 1, 2013 7:56 pm
Subject: RE: Contraception mandate



Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.
 
But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.
 
And I agree that we should discuss facts on the listserv without stooping to 
namecalling.
 
Eugene
 


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

 
Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts 

on the listserv without having to stoop to such namecalling.

 

Marci

 

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



 

-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc
 






___
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Please note that messages sent to this large list cannot be viewed as private.  
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Re: Contraception mandate

[Rick Garnett]

Dear colleagues,

"Religious liberty" is, of course, a fundamental human right, and so it is not 
clear to me why it should be troubling or surprising that legal regimes would 
be embraced by human-rights advocates (like Marc, Doug, etc.) that respect that 
right by insisting, e.g., that majority-supported legislation (of any type) 
substantially burdening the exercise of that right be closely scrutinized.

Rick Garnett

Sent from my iPhone

On Aug 1, 2013, at 7:47 PM, "hamilto...@aol.com" 
mailto:hamilto...@aol.com>> wrote:

With all due respect, Marc, RLPA was doomed by many forces, not just the civil 
rights community.  The American Academy of Pediatrics, and many other leading 
organizations
for the protection of children took a very strong stand.  We lobbied Congress 
together as well (we didn't have "chairs").  The two sides were not in the same 
rooms at the same time, obviously.

Your defense of Doug does not answer the factual questions I have posed.   I 
have no idea what Doug has been saying to groups in private all these years, 
because, as I
pointed out, those discussions have not been public, but rather behind closed 
doors among fellow lobbyists on that side.

Where in the RFRA legislative history (which is the only one that can be taken 
into account on any issue other than land use or prisons), is there any  
mention of for-profit
corporations obtaining its capacious rights?

I also find it very surprising at the idea that the civil rights groups should 
be mollfied when told that their interests would be "compelling interests," 
given that the least restrictive means test was still in play, and, as urged by 
most litigants on that side, virtually insuperable.



Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com
[http://sol-reform.com/fb.png]
___
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: Contraception mandate

[Volokh, Eugene]

Indeed, Marci didn’t say Doug was “lying,” but when one says of 
a first-hand witness that the “history, as I knew it, was distinctive from his 
account,” and “Not sure how to square [Doug’s past reassurances] w Doug's 
current statements,” the implicit accusation seems to me to be pretty clear.

But I should think that this could be clearly resolved:  If Marci wants to 
produce some quotes from Doug that are at variance with his current statements, 
that would be very interesting.  But until any such quotes are produced, I’m 
inclined to trust Doug.

And I agree that we should discuss facts on the listserv without stooping to 
namecalling.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Thursday, August 01, 2013 4:41 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception mandate

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.

Marci

Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
   [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>

-Original Message-
From: Marc Stern mailto:ste...@ajc.org>>
To: religionlaw mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate
Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc

___
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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: Contraception mandate

[hamilton02]

Marc-  I didn't say Doug was "lying."  I said that the history, as I knew it, 
was distinctive from his account.   I think we can discuss the facts
on the listserv without having to stoop to such namecalling.


Marci



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





-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:34 pm
Subject: Re: Contraception mandate


Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc
 

From: Saperstein, David [mailto:dsaperst...@rac.org]
Sent: Thursday, August 01, 2013 07:25 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate
 



Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton"  wrote:



I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.


Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start. 

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






On Aug 1, 2013, at 5:39 PM, James Oleske  wrote:




Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.


But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).





On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock  wrote:


Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”
 

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 Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

 
Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.
 
Supporters didnot say that for-profit businesses would not have a RLPA defense. 
This whole issue with respect to RLPA was triggered by a series of cases about 
for-profit landlords and unmarried opposite-sex couples, especiallyThomas v. 
Anchorage Human Rights Commission in the Ninth Circuit. Thomas was later 
vacated on other grounds, but the opinion is still on Westlaw.
 
If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.
 
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 James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate
 


[snip]

Re: Contraception mandate

[hamilton02]

With all due respect, Marc, RLPA was doomed by many forces, not just the civil 
rights community.  The American Academy of Pediatrics, and many other leading 
organizations
for the protection of children took a very strong stand.  We lobbied Congress 
together as well (we didn't have "chairs").  The two sides were not in the same 
rooms at the same time, obviously.  


Your defense of Doug does not answer the factual questions I have posed.   I 
have no idea what Doug has been saying to groups in private all these years, 
because, as I
pointed out, those discussions have not been public, but rather behind closed 
doors among fellow lobbyists on that side.


Where in the RFRA legislative history (which is the only one that can be taken 
into account on any issue other than land use or prisons), is there any  
mention of for-profit
corporations obtaining its capacious rights?


I also find it very surprising at the idea that the civil rights groups should 
be mollfied when told that their interests would be "compelling interests," 
given that the least restrictive means test was still in play, and, as urged by 
most litigants on that side, virtually insuperable.






Marci


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





-Original Message-
From: Marc Stern 
To: religionlaw 
Sent: Thu, Aug 1, 2013 7:29 pm
Subject: Re: Contraception mandate


Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together  when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
 One can disagree with that position, but it is flat out wrong to accuse Doug 
of misleading anyone. 
Marc Stern


 

From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate
 

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.


I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my Justia.com 
column on the Hobby Lobby decision, had the members been informed that RFRA 
would open doors for Wal-Mart to get around laws, RFRA would have taken a very 
different path.


Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.   


Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.  


All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.


Marci




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






On Aug 1, 2013, at 2:35 PM, James Oleske  wrote:




A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.


First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words: 



"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"



Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right.

Re: Contraception mandate

[Marc Stern]

Saw it. In the next post, she accuses doug of lying to left wing groups about 
RLPA and civil rights. I've responded defending Doug.
Marc

From: Saperstein, David [mailto:dsaperst...@rac.org]
Sent: Thursday, August 01, 2013 07:25 PM
To: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate



Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> wrote:

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start.

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



On Aug 1, 2013, at 5:39 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.

But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”

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 Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.

Supporters did not say that for-profit businesses would not have a RLPA 
defense. This whole issue with respect to RLPA was triggered by a series of 
cases about for-profit landlords and unmarried opposite-sex couples, especially 
Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was 
later vacated on other grounds, but the opinion is still on Westlaw.

If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.

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 James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

[snip]

One final question for Professor Laycock: In footnote 67 of your piece, you 
point to the legislative history of RLPA as evidence that RFRA covers 
for-profits, writing:
"Both sides in that debate believed that if enacted, RLPA would protect 
for-profit businesses from civil rights claims that substantially burdene

Re: Contraception mandate

[Saperstein, David]

Sent from my iPhone

On Aug 1, 2013, at 4:06 PM, "Marci Hamilton" 
mailto:hamilto...@aol.com>> wrote:

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start.

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



On Aug 1, 2013, at 5:39 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
were part of the RLPA discussion. I see from a quick look at the RLPA House 
Report that they were explicitly discussed there, and there is a footnote in 
the same general discussion rejecting the argument that "business corporations" 
would be categorically excluded from RPLA protection.

But to be clear, my question isn't whether supporters of RLPA thought 
for-profits would be categorically excluded from protection. It's clear they 
didn't think that. My question is whether, when fears were raised of commercial 
businesses being shielded by RLPA from civil rights laws, supporters of RLPA 
argued that those defenses could be balanced and limited by the courts 
consistent with Lee and its solicitude for the competing rights of employees in 
the commercial context.

It sounds like the answer is probably "no." The House report does not address 
that issue and instead focuses on the issue of whether antidiscrimination 
qualifies as a compelling interest, with the report's opinion seeming to be 
"yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
specifically the split in the lower courts over application of the compelling 
interest test in the marital status cases like Thomas and Swanner, but not 
expressing an opinion as to how those cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
Sorry. The first sentence below was supposed to say “there were cases that the 
religious objectors deserved to win.”

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 Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

Supporters of RLPA said that civil rights claimants would win most of the cases 
on compelling interest grounds, but that civil rights had come to be a very 
broad  category, and there the religious objectors deserved to win. They said 
the RLPA standard should be uniformly applied to all cases, as with the RFRA 
standard.

Supporters did not say that for-profit businesses would not have a RLPA 
defense. This whole issue with respect to RLPA was triggered by a series of 
cases about for-profit landlords and unmarried opposite-sex couples, especially 
Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. Thomas was 
later vacated on other grounds, but the opinion is still on Westlaw.

If these articles and Professor Oleske’s post trigger a substantial discussion, 
I regret that I will not be much of a participant. I’m on deadline and behind 
the curve with another major project.

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 James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

[snip]

One final question for Professor Laycock: In footnote 67 of your piece, you 
point to the legislative history of RLPA as evidence that RFRA covers 
for-profits, writing:
"Both sides in that debate believed that if enacted, RLPA would protect 
for-profit businesses from civil rights claims that substantially burdened the 
owner’s free exercise of religion. RLPA was in pari materia with RFRA, and its 
operative language was identical to the language of RFRA. The supporters of a 
civil-rights exception to RLPA were seeking an amendment that they knew they 
needed, and that had not been part of RFRA."

Did none of the supporters of RL

Re: Contraception mandate

[Marc Stern]

Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
One can disagree with that position, but it is flat out wrong to accuse Doug of 
misleading anyone.
Marc Stern



From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my 
Justia.com<http://Justia.com> column on the Hobby Lobby decision, had the 
members been informed that RFRA would open doors for Wal-Mart to get around 
laws, RFRA would have taken a very different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



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



On Aug 1, 2013, at 2:35 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words:

"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"

Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about religious issues. What is most striking to me 
about about this piece is that it flatly rejects the central talking point of 
some of those on the right who have relied most heavily on Professor Laycock's 
scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with 
overheated claims on both sides of the debate, but I'm most interested in the 
doctrinal analysis Professor Dane offers in place of the heat. In particular, 
on the issue of exemptions for for-profit institutions, Professor Dane's 
analysis begins with a line that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:

"I do think that the for-profit status of some religious objectors might be 
relevant, but at the back end – in the analysis of compelling interest – rather 
than the front end determination of substantial burden."

Professor Dane then notes that arguments can be made for and against making 
distinctions between small and large businesses in determining the government's 
interest in denying exemptions (I would only add that the denial of an 
exemption to a very small employer in Lee may be relevant to further 
exploration of these arguments). Professor Dane concludes his analysis by 
stating that a "vital proposition in the conception of religious liberty" is 
that

Re: Contraception mandate

[Marc Stern]

Doug and I chaired the drafting committee pushing RLPA. We also lobbied 
Congress and left wing groups together when the civil rights issued surfaced. 
Then and now the fight has also clearly been understood as between carving out 
civil rights laws entirely and leaving them in but acknowledging that in most 
cases -and certainly in regard to race-application of such laws would satisfy 
the act's compelling interest requirement. Had Doug ever accepted the civil 
rights carve out urged for example by leading. Democrats,and the ACLU et al, 
RLPA would today be law. In all the intervening years, doug has consistently 
adhered to the same position-that religious liberty standards apply to all 
claims but some are more likely to prevail than others.
One can disagree with that position, but it is flat out wrong to accuse Doug of 
misleading anyone.
Marc Stern



From: Marci Hamilton [mailto:hamilto...@aol.com]
Sent: Thursday, August 01, 2013 07:01 PM
To: Law & Religion issues for Law Academics 
Cc: Law & Religion issues for Law Academics 
Subject: Re: Contraception mandate

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my 
Justia.com<http://Justia.com> column on the Hobby Lobby decision, had the 
members been informed that RFRA would open doors for Wal-Mart to get around 
laws, RFRA would have taken a very different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



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



On Aug 1, 2013, at 2:35 PM, James Oleske 
mailto:jole...@lclark.edu>> wrote:

A few comments and one question upon an initial read of Professor Laycock and 
Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to 
overstate the importance of one of the nation's most prominent and respected 
advocates for a broad conception of religious liberty penning the following 
words:

"These Final Rules offer a serious plan to protect religious liberty without 
depriving women of contraception These Final Rules are utterly inconsistent 
with the common charge that the Obama Administration is engaged in a 'war on 
religion.'"

Professor Laycock's piece does not spare the political left from similar 
rebukes -- indeed, groups on the political left come in for more extensive 
criticism in the "Growing Hostility" section of the piece than groups on the 
political right. But Professor Laycock has previously offered strong criticism 
of rhetoric on the left about religious issues. What is most striking to me 
about about this piece is that it flatly rejects the central talking point of 
some of those on the right who have relied most heavily on Professor Laycock's 
scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with 
overheated claims on both sides of the debate, but I'm most interested in the 
doctrinal analysis Professor Dane offers in place of the heat. In particular, 
on the issue of exemptions for for-profit institutions, Professor Dane's 
analysis begins with a line that, while not explicitly discussing the case, 
seems to track the approach of the Court in United States v. Lee:

"I do think that the for-profit status of some religious objectors might be 
relevant, but at the back end – in the analysis of compelling interest – rather 
than the front end determination of substantial burden."

Professor Dane then notes that arguments can be made for and against making 
distinctions between small and large businesses in determining the government's 
interest in denying exemptions (I would only add that the denial of an 
exemption to a very small employer in Lee may be relevant to further 
exploration of these arguments). Professor Dane concludes his analysis by 
stating that a "vital proposition in the conception of religious liberty" is 
that

Re: Contraception mandate

[Marci Hamilton]

I think it is critically important to remember that RLPA was rejected 
categorically by the members as much too broad.  The history w respect to 
anything other than land use and prisons are the only histories that have any 
reliable content to them for future interpretation.

Post-enactment legislative history is the least reliable and should never be 
accepted as evidence of legislative purpose by courts.   I would have thought 
that was where anyone analyzing RFRA and RLPA would start. 

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



On Aug 1, 2013, at 5:39 PM, James Oleske  wrote:

> Thanks for the reminder that Thomas, Swanner, and other similar housing cases 
> were part of the RLPA discussion. I see from a quick look at the RLPA House 
> Report that they were explicitly discussed there, and there is a footnote in 
> the same general discussion rejecting the argument that "business 
> corporations" would be categorically excluded from RPLA protection.
> 
> But to be clear, my question isn't whether supporters of RLPA thought 
> for-profits would be categorically excluded from protection. It's clear they 
> didn't think that. My question is whether, when fears were raised of 
> commercial businesses being shielded by RLPA from civil rights laws, 
> supporters of RLPA argued that those defenses could be balanced and limited 
> by the courts consistent with Lee and its solicitude for the competing rights 
> of employees in the commercial context. 
> 
> It sounds like the answer is probably "no." The House report does not address 
> that issue and instead focuses on the issue of whether antidiscrimination 
> qualifies as a compelling interest, with the report's opinion seeming to be 
> "yes" for race, "usually yes" for sex, and "TBD" for everything else (citing 
> specifically the split in the lower courts over application of the compelling 
> interest test in the marital status cases like Thomas and Swanner, but not 
> expressing an opinion as to how those cases should turn out).
> 
> On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock  
> wrote:
>> Sorry. The first sentence below was supposed to say “there were cases that 
>> the religious objectors deserved to win.”
>> 
>>  
>> 
>> 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 Douglas Laycock
>> Sent: Thursday, August 01, 2013 3:24 PM
>> To: 'Law & Religion issues for Law Academics'
>> Subject: RE: Contraception mandate
>> 
>>  
>> 
>> Supporters of RLPA said that civil rights claimants would win most of the 
>> cases on compelling interest grounds, but that civil rights had come to be a 
>> very broad  category, and there the religious objectors deserved to win. 
>> They said the RLPA standard should be uniformly applied to all cases, as 
>> with the RFRA standard.
>> 
>>  
>> 
>> Supporters did not say that for-profit businesses would not have a RLPA 
>> defense. This whole issue with respect to RLPA was triggered by a series of 
>> cases about for-profit landlords and unmarried opposite-sex couples, 
>> especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit. 
>> Thomas was later vacated on other grounds, but the opinion is still on 
>> Westlaw.
>> 
>>  
>> 
>> If these articles and Professor Oleske’s post trigger a substantial 
>> discussion, I regret that I will not be much of a participant. I’m on 
>> deadline and behind the curve with another major project.
>> 
>>  
>> 
>> 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 James Oleske
>> Sent: Thursday, August 01, 2013 2:36 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Contraception mandate
>> 
> [snip]
>  
>> One final question for Professor Laycock: In footnote 67 of your piece, you 
>> point to the legislative history of RLPA as evidence that RFRA covers 
>> for-profits, writin

Re: Contraception mandate

[Marci Hamilton]

As I understand the process, Doug reassured folks on the left that RLPA as 
applied to land use law would not apply to the civil rights laws, particularly 
the fair housing laws.   Not sure how to square that w Doug's current 
statements.

I also find the in pari materia argument disingenuous at best.  When RFRA was 
being enacted, the Coalition had agreed amongst themselves not to disclose 
individual agendas.   And none of the very few examples used to support RFRA 
had anything remotely to do w for-profit companies.   As I say in my Justia.com 
column on the Hobby Lobby decision, had the members been informed that RFRA 
would open doors for Wal-Mart to get around laws, RFRA would have taken a very 
different path.

Despite being deeply involved in RFRA via Boerne, and educated by the many 
organizations that contacted me, I only learned that the CLS was intent on 
overcoming the fair housing laws when a memo re the CA state RFRA was 
inadvertently shared w me.   

Finally, the RCC at first opposed RFRA for fear it would undermine its pro-life 
position, but was reassured RFRA would not affect the abortion issue.  

All of these elements need to be explained to make the argument that RFRA was 
intended to apply to for-profit corporations.

Marci



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



On Aug 1, 2013, at 2:35 PM, James Oleske  wrote:

> A few comments and one question upon an initial read of Professor Laycock and 
> Professor Dane's pieces.
> 
> First, with respect to Professor Laycock's piece, I think it is difficult to 
> overstate the importance of one of the nation's most prominent and respected 
> advocates for a broad conception of religious liberty penning the following 
> words: 
> 
> "These Final Rules offer a serious plan to protect religious liberty without 
> depriving women of contraception These Final Rules are utterly 
> inconsistent with the common charge that the Obama Administration is engaged 
> in a 'war on religion.'"
> 
> Professor Laycock's piece does not spare the political left from similar 
> rebukes -- indeed, groups on the political left come in for more extensive 
> criticism in the "Growing Hostility" section of the piece than groups on the 
> political right. But Professor Laycock has previously offered strong 
> criticism of rhetoric on the left about religious issues. What is most 
> striking to me about about this piece is that it flatly rejects the central 
> talking point of some of those on the right who have relied most heavily on 
> Professor Laycock's scholarship about religious exemptions.
> 
> Like Professor Laycock's piece, Professor Dane's piece finds fault with 
> overheated claims on both sides of the debate, but I'm most interested in the 
> doctrinal analysis Professor Dane offers in place of the heat. In particular, 
> on the issue of exemptions for for-profit institutions, Professor Dane's 
> analysis begins with a line that, while not explicitly discussing the case, 
> seems to track the approach of the Court in United States v. Lee: 
> 
> "I do think that the for-profit status of some religious objectors might be 
> relevant, but at the back end – in the analysis of compelling interest – 
> rather than the front end determination of substantial burden." 
> 
> Professor Dane then notes that arguments can be made for and against making 
> distinctions between small and large businesses in determining the 
> government's interest in denying exemptions (I would only add that the denial 
> of an exemption to a very small employer in Lee may be relevant to further 
> exploration of these arguments). Professor Dane concludes his analysis by 
> stating that a "vital proposition in the conception of religious liberty" is 
> that "believers have at least a presumptive right to live out the commitments 
> of their faith across the whole range of human activity, including the world 
> of business and commerce."
> 
> It is this last point that I think would benefit most from being expanded to 
> account for the doctrinal significance of Lee, where the Court identified a 
> competing presumption that comes into play in for-profit cases due to impact 
> on third parties:
> 
> "When followers of a particular sect enter into commercial activity as a 
> matter of choice, the limits they accept on their own conduct as a matter of 
> conscience and faith are not to be superimposed on the statutory schemes 
> which are binding on others in that activity. Granting an exemption from 
> social security taxes to an employer operates to impose the employer's 
> religious faith on the employees." 
> 
> I've previously criticized the Tenth Circuit majority in Hobby Lobby for 
> failing to address this language from Lee. Since then, the Third Circuit 
> majority in Conestoga Wood -- while coming to the opposite conclusion of the 
> Tenth Circuit -- has likewise neglected to engage the relevant languag

Re: Contraception mandate

[James Oleske]

Thanks for the reminder that Thomas, Swanner, and other similar housing
cases were part of the RLPA discussion. I see from a quick look at the RLPA
House Report that they were explicitly discussed there, and there is a
footnote in the same general discussion rejecting the argument that
"business corporations" would be categorically excluded from RPLA
protection.

But to be clear, my question isn't whether supporters of RLPA thought
for-profits would be categorically excluded from protection. It's clear
they didn't think that. My question is whether, when fears were raised of
commercial businesses being shielded by RLPA from civil rights laws,
supporters of RLPA argued that those defenses could be balanced and limited
by the courts consistent with Lee and its solicitude for the competing
rights of employees in the commercial context.

It sounds like the answer is probably "no." The House report does not
address that issue and instead focuses on the issue of whether
antidiscrimination qualifies as a compelling interest, with the report's
opinion seeming to be "yes" for race, "usually yes" for sex, and "TBD" for
everything else (citing specifically the split in the lower courts over
application of the compelling interest test in the marital status cases
like Thomas and Swanner, but not expressing an opinion as to how those
cases should turn out).

On Thu, Aug 1, 2013 at 12:32 PM, Douglas Laycock wrote:

> Sorry. The first sentence below was supposed to say “there were cases that
> the religious objectors deserved to win.”
>
> ** **
>
> 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 *Douglas Laycock
> *Sent:* Thursday, August 01, 2013 3:24 PM
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: Contraception mandate
>
> ** **
>
> Supporters of RLPA said that civil rights claimants would win most of the
> cases on compelling interest grounds, but that civil rights had come to be
> a very broad  category, and there the religious objectors deserved to win.
> They said the RLPA standard should be uniformly applied to all cases, as
> with the RFRA standard.
>
> ** **
>
> Supporters did *not* say that for-profit businesses would not have a RLPA
> defense. This whole issue with respect to RLPA was triggered by a series of
> cases about for-profit landlords and unmarried opposite-sex couples,
> especially *Thomas v. Anchorage Human Rights Commission* in the Ninth
> Circuit. *Thomas* was later vacated on other grounds, but the opinion is
> still on Westlaw.
>
> ** **
>
> If these articles and Professor Oleske’s post trigger a substantial
> discussion, I regret that I will not be much of a participant. I’m on
> deadline and behind the curve with another major project.
>
> ** **
>
> 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 *James Oleske
> *Sent:* Thursday, August 01, 2013 2:36 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Contraception mandate
>
>
>
[snip]


> One final question for Professor Laycock: In footnote 67 of your piece,
> you point to the legislative history of RLPA as evidence that RFRA covers
> for-profits, writing:
>
> "Both sides in that debate believed that if enacted, RLPA would protect
> for-profit businesses from civil rights claims that substantially burdened
> the owner’s free exercise of religion. RLPA was in pari materia with RFRA,
> and its operative language was identical to the language of RFRA. The
> supporters of a civil-rights exception to RLPA were seeking an amendment
> that they knew they needed, and that had not been part of RFRA." 
>
>
> Did none of the supporters of RLPA try to reassure the civil rights
> community that they did not need an exception because the Supreme Court's
> pre-Smith jurisprudence that was being restored had already imposed
> limitations on exemptions in the commercial arena? I haven't studied the
> legislative history of RLPA, but I would have expected that argument to
> have been made (along with the argument that the Court's pre-Smith
> jurisprudence already found that p

RE: Contraception mandate

[Douglas Laycock]

Sorry. The first sentence below was supposed to say "there were cases that
the religious objectors deserved to win."

 

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 Douglas Laycock
Sent: Thursday, August 01, 2013 3:24 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

 

Supporters of RLPA said that civil rights claimants would win most of the
cases on compelling interest grounds, but that civil rights had come to be a
very broad  category, and there the religious objectors deserved to win.
They said the RLPA standard should be uniformly applied to all cases, as
with the RFRA standard.

 

Supporters did not say that for-profit businesses would not have a RLPA
defense. This whole issue with respect to RLPA was triggered by a series of
cases about for-profit landlords and unmarried opposite-sex couples,
especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit.
Thomas was later vacated on other grounds, but the opinion is still on
Westlaw.

 

If these articles and Professor Oleske's post trigger a substantial
discussion, I regret that I will not be much of a participant. I'm on
deadline and behind the curve with another major project.

 

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 James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

 

A few comments and one question upon an initial read of Professor Laycock
and Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to
overstate the importance of one of the nation's most prominent and respected
advocates for a broad conception of religious liberty penning the following
words: 

 

"These Final Rules offer a serious plan to protect religious liberty without
depriving women of contraception These Final Rules are utterly
inconsistent with the common charge that the Obama Administration is engaged
in a 'war on religion.'"

 

Professor Laycock's piece does not spare the political left from similar
rebukes -- indeed, groups on the political left come in for more extensive
criticism in the "Growing Hostility" section of the piece than groups on the
political right. But Professor Laycock has previously offered strong
criticism of rhetoric on the left about religious issues. What is most
striking to me about about this piece is that it flatly rejects the central
talking point of some of those on the right who have relied most heavily on
Professor Laycock's scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with
overheated claims on both sides of the debate, but I'm most interested in
the doctrinal analysis Professor Dane offers in place of the heat. In
particular, on the issue of exemptions for for-profit institutions,
Professor Dane's analysis begins with a line that, while not explicitly
discussing the case, seems to track the approach of the Court in United
States v. Lee: 

"I do think that the for-profit status of some religious objectors might be
relevant, but at the back end - in the analysis of compelling interest -
rather than the front end determination of substantial burden." 


Professor Dane then notes that arguments can be made for and against making
distinctions between small and large businesses in determining the
government's interest in denying exemptions (I would only add that the
denial of an exemption to a very small employer in Lee may be relevant to
further exploration of these arguments). Professor Dane concludes his
analysis by stating that a "vital proposition in the conception of religious
liberty" is that "believers have at least a presumptive right to live out
the commitments of their faith across the whole range of human activity,
including the world of business and commerce."

It is this last point that I think would benefit most from being expanded to
account for the doctrinal significance of Lee, where the Court identified a
competing presumption that comes into play in for-profit cases due to impact
on third parties:

"When followers of a particular sect enter into commercial activity as a
matter of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes
which are binding

RE: Contraception mandate

[Douglas Laycock]

Supporters of RLPA said that civil rights claimants would win most of the
cases on compelling interest grounds, but that civil rights had come to be a
very broad  category, and there the religious objectors deserved to win.
They said the RLPA standard should be uniformly applied to all cases, as
with the RFRA standard.

 

Supporters did not say that for-profit businesses would not have a RLPA
defense. This whole issue with respect to RLPA was triggered by a series of
cases about for-profit landlords and unmarried opposite-sex couples,
especially Thomas v. Anchorage Human Rights Commission in the Ninth Circuit.
Thomas was later vacated on other grounds, but the opinion is still on
Westlaw.

 

If these articles and Professor Oleske's post trigger a substantial
discussion, I regret that I will not be much of a participant. I'm on
deadline and behind the curve with another major project.

 

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 James Oleske
Sent: Thursday, August 01, 2013 2:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception mandate

 

A few comments and one question upon an initial read of Professor Laycock
and Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult to
overstate the importance of one of the nation's most prominent and respected
advocates for a broad conception of religious liberty penning the following
words: 

 

"These Final Rules offer a serious plan to protect religious liberty without
depriving women of contraception These Final Rules are utterly
inconsistent with the common charge that the Obama Administration is engaged
in a 'war on religion.'"

 

Professor Laycock's piece does not spare the political left from similar
rebukes -- indeed, groups on the political left come in for more extensive
criticism in the "Growing Hostility" section of the piece than groups on the
political right. But Professor Laycock has previously offered strong
criticism of rhetoric on the left about religious issues. What is most
striking to me about about this piece is that it flatly rejects the central
talking point of some of those on the right who have relied most heavily on
Professor Laycock's scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with
overheated claims on both sides of the debate, but I'm most interested in
the doctrinal analysis Professor Dane offers in place of the heat. In
particular, on the issue of exemptions for for-profit institutions,
Professor Dane's analysis begins with a line that, while not explicitly
discussing the case, seems to track the approach of the Court in United
States v. Lee: 

"I do think that the for-profit status of some religious objectors might be
relevant, but at the back end - in the analysis of compelling interest -
rather than the front end determination of substantial burden." 


Professor Dane then notes that arguments can be made for and against making
distinctions between small and large businesses in determining the
government's interest in denying exemptions (I would only add that the
denial of an exemption to a very small employer in Lee may be relevant to
further exploration of these arguments). Professor Dane concludes his
analysis by stating that a "vital proposition in the conception of religious
liberty" is that "believers have at least a presumptive right to live out
the commitments of their faith across the whole range of human activity,
including the world of business and commerce."

It is this last point that I think would benefit most from being expanded to
account for the doctrinal significance of Lee, where the Court identified a
competing presumption that comes into play in for-profit cases due to impact
on third parties:

"When followers of a particular sect enter into commercial activity as a
matter of choice, the limits they accept on their own conduct as a matter of
conscience and faith are not to be superimposed on the statutory schemes
which are binding on others in that activity. Granting an exemption from
social security taxes to an employer operates to impose the employer's
religious faith on the employees." 

 

I've previously criticized the Tenth Circuit majority in Hobby Lobby for
failing to address this language from Lee. Since then, the Third Circuit
majority in Conestoga Wood -- while coming to the opposite conclusion of the
Tenth Circuit -- has likewise neglected to engage the relevant language from
Lee (the dissents in both cases do at least quote the language, but neither
provides a satisfying discussion of its relevance)

Re: Contraception mandate

[James Oleske]

A few comments and one question upon an initial read of Professor Laycock
and Professor Dane's pieces.

First, with respect to Professor Laycock's piece, I think it is difficult
to overstate the importance of one of the nation's most prominent and
respected advocates for a broad conception of religious liberty penning the
following words:

"These Final Rules offer a serious plan to protect religious liberty
without depriving women of contraception These Final Rules are utterly
inconsistent with the common charge that the Obama Administration is
engaged in a 'war on religion.'"

Professor Laycock's piece does not spare the political left from similar
rebukes -- indeed, groups on the political left come in for more extensive
criticism in the "Growing Hostility" section of the piece than groups on
the political right. But Professor Laycock has previously offered strong
criticism of rhetoric on the left about religious issues. What is most
striking to me about about this piece is that it flatly rejects the central
talking point of some of those on the right who have relied most heavily on
Professor Laycock's scholarship about religious exemptions.

Like Professor Laycock's piece, Professor Dane's piece finds fault with
overheated claims on both sides of the debate, but I'm most interested in
the doctrinal analysis Professor Dane offers in place of the heat. In
particular, on the issue of exemptions for for-profit institutions,
Professor Dane's analysis begins with a line that, while not explicitly
discussing the case, seems to track the approach of the Court in United
States v. Lee:

"I do think that the for-profit status of some religious objectors might be
relevant, but at the back end – in the analysis of compelling interest –
rather than the front end determination of substantial burden."

Professor Dane then notes that arguments can be made for and against making
distinctions between small and large businesses in determining the
government's interest in denying exemptions (I would only add that the
denial of an exemption to a very small employer in Lee may be relevant to
further exploration of these arguments). Professor Dane concludes his
analysis by stating that a "vital proposition in the conception of
religious liberty" is that "believers have at least a presumptive right to
live out the commitments of their faith across the whole range of human
activity, including the world of business and commerce."

It is this last point that I think would benefit most from being expanded
to account for the doctrinal significance of Lee, where the Court
identified a competing presumption that comes into play in for-profit cases
due to impact on third parties:

"When followers of a particular sect enter into commercial activity as a
matter of choice, the limits they accept on their own conduct as a matter
of conscience and faith are not to be superimposed on the statutory schemes
which are binding on others in that activity. Granting an exemption from
social security taxes to an employer operates to impose the employer's
religious faith on the employees."

I've previously criticized the Tenth Circuit majority in Hobby Lobby for
failing to address this language from Lee. Since then, the Third Circuit
majority in Conestoga Wood -- while coming to the opposite conclusion of
the Tenth Circuit -- has likewise neglected to engage the relevant language
from Lee (the dissents in both cases do at least quote the language, but
neither provides a satisfying discussion of its relevance). Admittedly, the
result in Lee is arguably in some tension with language in O'Centro, which
itself is arguably in some tension with language in Cutter, but if we're
going to get out of this doctrinal thicket, it seems to me that courts and
commentators are going to have to carefully work through and (if possible)
reconcile the language and results in all three of those cases.

One final question for Professor Laycock: In footnote 67 of your piece, you
point to the legislative history of RLPA as evidence that RFRA covers
for-profits, writing:

"Both sides in that debate believed that if enacted, RLPA would protect
for-profit businesses from civil rights claims that substantially burdened
the owner’s free exercise of religion. RLPA was in pari materia with RFRA,
and its operative language was identical to the language of RFRA. The
supporters of a civil-rights exception to RLPA were seeking an amendment
that they knew they needed, and that had not been part of RFRA."

Did none of the supporters of RLPA try to reassure the civil rights
community that they did not need an exception because the Supreme Court's
pre-Smith jurisprudence that was being restored had already imposed
limitations on exemptions in the commercial arena? I haven't studied the
legislative history of RLPA, but I would have expected that argument to
have been made (along with the argument that the Court's pre-Smith
jurisprudence already found that preventing certain types of di

RE: Contraception mandate

[Berg, Thomas C.]

I hesitate a bit to pitch my piece here, since it could accelerate a trend that 
we might not want if the list is otherwise active; but since it's not active 
for now, I'll refer to my own new piece, which is likewise on (part of) the 
mandate and the culture wars and aims to express a certain position outside the 
familiar poles: "progressive arguments for the freedom of religious 
organizations."  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2268824



-
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<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: Thursday, August 01, 2013 9:53 AM
To: d...@crab.rutgers.edu; 'Law & Religion issues for Law Academics'
Subject: RE: Contraception mandate

By coincidence, I just posted a related piece, broader than Perry’s in some 
ways, narrower in others:

http://papers.ssrn.com/abstract=2304427

The piece is framed in terms of the larger culture wars, and does not offer a 
full doctrinal analysis of the contraception litigation. But buried in the 
middle is a fairly detailed analysis of the recently published Final Rules on 
the contraception mandate, which also “tries to speak sanely.”



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 Perry Dane
Sent: Thursday, August 01, 2013 10:27 AM
To: religionlaw@lists.ucla.edu
Subject: Contraception mandate


Hi all,

I've posted a short essay -- half of a projected exchanged -- that tries to 
speak sanely about the contraceptive mandate debate.  The piece offers a 
doctrinal analysis, but also explores how the debate -- and in particular the 
overblown claims by both sides -- "suggest some imperfectly articulated 
undercurrents in the current American conversation about religion and the law." 
 See http://ssrn.com/abstract=2296635

Comments would, of course, be welcome.

   Perry

*



Perry Dane

Professor of Law

Rutgers University School of Law



d...@crab.rutgers.edu<mailto:d...@crab.rutgers.edu>



Bio: www.camlaw.rutgers.edu/bio/925/<http://www.camlaw.rutgers.edu/bio/925/>

SSRN Author page: http://www.ssrn.com/author=48596

Academia.edu page: rutgers.academia.edu/PerryDane



*
___
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: Contraception mandate

[Douglas Laycock]

By coincidence, I just posted a related piece, broader than Perry’s in some 
ways, narrower in others:

 

http://papers.ssrn.com/abstract=2304427

 

The piece is framed in terms of the larger culture wars, and does not offer a 
full doctrinal analysis of the contraception litigation. But buried in the 
middle is a fairly detailed analysis of the recently published Final Rules on 
the contraception mandate, which also “tries to speak sanely.”

 

 

 

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 Perry Dane
Sent: Thursday, August 01, 2013 10:27 AM
To: religionlaw@lists.ucla.edu
Subject: Contraception mandate

 

Hi all,

I've posted a short essay -- half of a projected exchanged -- that tries to 
speak sanely about the contraceptive mandate debate.  The piece offers a 
doctrinal analysis, but also explores how the debate -- and in particular the 
overblown claims by both sides -- "suggest some imperfectly articulated 
undercurrents in the current American conversation about religion and the law." 
 See http://ssrn.com/abstract=2296635  

Comments would, of course, be welcome.

   Perry

*
 
Perry Dane
Professor of Law 
Rutgers University School of Law
 
d...@crab.rutgers.edu   
 
Bio: www.camlaw.rutgers.edu/bio/925/   
SSRN Author page: http://www.ssrn.com/author=48596
Academia.edu page: rutgers.academia.edu/PerryDane
 
*
___
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.