Re: Contraception mandate - Lee

[Marty Lederman]

Chip and I are not that far apart.

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

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


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

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

Re: Contraception mandate - Lee

[Ira Lupu]

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

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

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


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

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

Re: Contraception mandate - Lee

[Marty Lederman]

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

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

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

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

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

Re: Contraception mandate - Lee

[Ira Lupu]

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

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

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


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

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