RE: Contraception Mandate
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 post
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 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 -Original Message- From: Brad Pardee bp51...@windstream.net To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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
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 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
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 Establishment Clause
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 -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception Mandate
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. tcb...@stthomas.edu To: religionlaw religionlaw@lists.ucla.edu 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 University of St. Thomas School of Law MSL 400
RE: Contraception Mandate
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.comhttp://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 vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change
RE: Contraception Mandate
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 bp51...@windstream.net To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private
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). ___ 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
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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Contraception Mandate
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.orghttp://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 bp51...@windstream.netmailto: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 ___ 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
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 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 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 Religionlaw@lists.ucla.edu To
RE: Contraception Mandate
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). ___ 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
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 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 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 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
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 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 hamilto...@aol.comwrote: 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 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 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
Re: Contraception Mandate
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 mwor...@byulaw.net 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 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 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 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 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.
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 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 *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 vol...@law.ucla.edu To: Law Religion issues for Law Academics 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
Re: Contraception Mandate
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 hamilto...@aol.com 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 mwor...@byulaw.net 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 mwor...@byulaw.netwrote: 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 hamilto...@aol.comwrote: 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 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 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,
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] 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 vol...@law.ucla.edumailto: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 ___ 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
(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.edumailto: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 vol...@law.ucla.edumailto: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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options
RE: Contraception Mandate
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 mwor...@byulaw.netmailto: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 hamilto...@aol.commailto: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 vol...@law.ucla.edumailto: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 think that somehow constitutes the employer discriminating based on religion against people who don't share his beliefs. Now say
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 From: religionlaw-boun...@lists.ucla.edumailto: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
Re: Contraception mandate - Lee
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 icl...@law.gwu.edu 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 lederman.ma...@gmail.comwrote: 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 icl...@law.gwu.edu 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
RE: Contraception mandate
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 vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: No, Marci. You personalized this. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, August 01, 2013 5:20 PM To: religionlaw@lists.ucla.edumailto: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.
Re: Contraception mandate
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 hamilto...@aol.com 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 ste...@ajc.org 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.
Re: Contraception mandate
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 jole...@lclark.edu 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 hamilto...@aol.com 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 ste...@ajc.org 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. ___ 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
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 jole...@lclark.edu 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 hamilto...@aol.com 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 ste...@ajc.org 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. ___ 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
Re: Contraception mandate
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 hamilto...@aol.com 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 jole...@lclark.edu 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 hamilto...@aol.com 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 ste...@ajc.org 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
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 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
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.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://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.edumailto: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 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
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 discrimination
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 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
RE: Contraception mandate
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 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
Re: Contraception mandate
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 dlayc...@virginia.eduwrote: 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.edureligionlaw-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 preventing certain types of discrimination is a compelling state interest that can trump religious exemption claims). ** ** Best, Jim ** ** On Thu, Aug 1, 2013 at 7:53 AM, Douglas Laycock dlayc...@virginia.edu wrote: 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
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 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 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
Re: Contraception mandate
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 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 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] 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
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 religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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.comhttp://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 jole...@lclark.edumailto: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 believers have at least a presumptive right to live out the commitments
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 religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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.comhttp://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 jole...@lclark.edumailto: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 believers have at least a presumptive right to live out the commitments
Re: Contraception mandate
Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton hamilto...@aol.commailto: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 jole...@lclark.edumailto: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 dlayc...@virginia.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto: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
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 religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton hamilto...@aol.commailto: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 jole...@lclark.edumailto: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 dlayc...@virginia.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto: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 434-243-8546tel:434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto: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
Re: Contraception mandate
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 ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edu 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 religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu 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 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
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 ste...@ajc.org To: religionlaw 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 From: Saperstein, David [mailto:dsaperst...@rac.org] Sent: Thursday, August 01, 2013 07:25 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Contraception mandate Sent from my iPhone On Aug 1, 2013, at 4:06 PM, Marci Hamilton 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 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 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]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] One final
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.comhttp://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 ste...@ajc.orgmailto:ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edumailto: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 ___ 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
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.commailto:hamilto...@aol.com hamilto...@aol.commailto: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.comhttp://sol-reform.com/ [http://sol-reform.com/fb.png]https://www.facebook.com/professormarciahamilton?fref=ts ___ 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
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 vol...@law.ucla.edu To: Law Religion issues for Law Academics 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] 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 ste...@ajc.org To: religionlaw 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 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Contraception mandate
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.comhttp://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 vol...@law.ucla.edumailto:vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto: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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu?] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, August 01, 2013 4:41 PM To: religionlaw@lists.ucla.edumailto: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.comhttp://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 ste...@ajc.orgmailto:ste...@ajc.org To: religionlaw religionlaw@lists.ucla.edumailto: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 ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 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 vol...@law.ucla.edu To: Law Religion issues for Law Academics 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] 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 ste...@ajc.org To: religionlaw 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 ___ 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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message
Re: Contraception mandate
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 religionlaw@lists.ucla.edu; hamilto...@aol.com 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 vol...@law.ucla.edu To: Law Religion issues for Law Academics 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] 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 ste...@ajc.org To: religionlaw 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
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 vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: No, Marci. You personalized this. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Thursday, August 01, 2013 5:20 PM To: religionlaw@lists.ucla.edumailto: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.
Re: Contraception mandate
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 dc...@law.usc.edu 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 vol...@law.ucla.edu wrote: No, Marci. You personalized this. ** ** *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-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. ___ 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
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 ste...@ajc.org 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 religionlaw@lists.ucla.edu; hamilto...@aol.com 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 vol...@law.ucla.edu To: Law Religion issues for Law Academics 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] On Behalf Of hamilto...@aol.com
Re: Contraception mandate
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 lederman.ma...@gmail.comwrote: 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. ___ 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.
