Re: recommended Hobby Lobby posts
Apologies for the shameless self-promotion -- My contribution to the SCOTUSblog symposium is here: http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/ I also have a couple of recent new posts up on Balkinization, concerning various matters in Hobby Lobby's brief; links to all my posts can be found here: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html On Wed, Feb 19, 2014 at 10:32 PM, Marty Lederman wrote: > I have some further posts up on Balkinization. More importantly, both > Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of > the SCOTUSblog symposium, which I commend to all of you: > > Chip/Bob: > http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ > > Doug: > http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ > > > ___ 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: recommended Hobby Lobby posts
I don't find the proposition to be particularly comforting that religious liberty concerns must take a back seat in areas "highly regulated" by the government as opposed to "lightly regulated" ones.Instead, it seems to me that the need to vigorously protect free exercise of religion is of greater importance in those areas of life where government intrusion is higher. More fundamentally, the view that the free exercise of religion matters less when the government has already occupied the regulatory space raises the question of where does the right to free exercise of religion come from at all.Is the protection of religious exercise just a gift of a positivist state that sees some utilitarian benefit in providing some of its citizens a right to practice religion? (E.g., wouldn't it be quaint if our government allowed a few Mennonites-so long as they don't take their faith too seriously).Or does the government protect the free exercise of religion because it recognizes that following one's conscience in religious matters is something that is in the very nature of its people and is therefore a fundamental right that exists in all people prior to the state even existing? Under the first view, what the state gives, the state can take away. Under the second view, the power of the state is necessarily constrained by the existence of fundamental rights that inhere in the very nature of the people. Yes, the government can limit exercise of religion in the second view, but only where it truly satisfies strict scrutiny; if the government exercises its power more broadly to limit free exercise of religion, it loses its legitimacy by denying its people the ability to live and act in accordance with something that makes them human in the first place-the ability to live and act in accordance with their religiously informed conscience. On the substance, I would also disagree that Hobby Lobby and Conestoga have "ignored" the so-called Caldor / Establishment Clause problem of needing to avoid harm to 3rd parties.To the contrary, the briefs deal extensively with whether the alleged harm to 3rd parties-i.e., increasing the number of women who won't get free abortifacients /contraceptives--qualifies as a compelling government interest. The briefs convincingly demonstrates that this doesn't qualify as a compelling government interest because the regulatory regime established by the government already allows for large numbers of women not to get free abortifacients /contraceptives from their employers (i.e., women in grandfathered plans, plans with employers who employ less than 50 employees, and plans with those employers the Administration (grudgingly) conceded were sufficiently religious). Where so many exceptions to this interest already exist, this doesn't rise to the level of a compelling government interest. Moreover, the fact that other exceptions are given for non-religious reasons means that this is not a case in which an exception has been given for uniquely religious reasons, thereby further avoiding an Establishment Clause concern. Grace and peace to you, Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 20, 2014 8:27 PM To: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Mark Scarberry writes "We are on a slippery slope when we refer to someone as seeking to have "the government[] ... authorize [it] to act on religious beliefs in ways that harm others," when what is at stake is whether the government can force that person to do something for others in violation of religious conscience. This comes very close to saying that the government authorizes whatever it does not prohibit." Mark's concern is very apt in a world of lightly regulated relationships between people who are not in a legally constructed relationship. The government does not "authorize" me to be rude to my neighbors when it fails to prohibit the rudeness. But the employment relation is a highly regulated contractual one, with all sorts of legal duties imposed on parties, especially on employers. So if government prescribes terms for that relationship -- e.g., provide a safe workplace -- then an exemption from those terms is "authorization" to behave differently and alter the contract to the detriment of the other party. The minimum coverages -- contraceptive and otherwise -- are now effectively part of the employment contract in firms with 50+ employees, and the only ways out are 1) keep your pre-ACA plan, or 2) pay the assessable payment for dropping or not obtaining cover
Re: recommended Hobby Lobby posts
ndiana 46556-0780 > > 574-631-6981 (w) > > 574-276-2252 (cell) > > rgarn...@nd.edu > > > > To download my scholarly papers, please visit my SSRN > page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> > > > > Blogs: > > > > Prawfsblawg <http://prawfsblawg.blogs.com/> > > Mirror of Justice <http://mirrorofjustice.blogs.com/> > > > > Twitter: @RickGarnett <https://twitter.com/RickGarnett> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Alan Brownstein > *Sent:* Friday, February 21, 2014 1:22 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* RE: recommended Hobby Lobby posts > > > > These are very helpful responses, Chip. Let me try to use them to identify > and clarify where I think we agree and disagree. > > > > 1. I agree that Religion is different and the Establishment Clause is part > of what makes it different. The fact that free speech doctrine requires > government to allow the exercise of a right even when doing so imposes > substantial costs on third parties or the public does not mean that > religious accommodations can impose a similar magnitude of costs on third > parties or the public without violating the Establishment Clause. I also > agree that the Establishment Clause limit is hard to identify, but it is > certainly there and operates as a constraint on accommodations. But my > example wasn't intended to suggest that the magnitude of costs acceptable > in free speech cases parallels the magnitude of permissible costs for > Establishment Clause purposes. My point was that the way we measure costs > should operate the same way for both free speech and Establishment Clause > purposes. In both cases, harm should be evaluated by determining the cost > of mitigation, not by evaluating the cost of unmitigated consequences. If a > religious group was going to engage in an unpopular ritual -- an animal > sacrifice, for example -- and the state wanted to prohibit it from doing so > to avoid disorder, property damage etc. caused by people who wanted to stop > the ritual from happening, the state's interest in a RFRA type case should > be measured in the same way it would be measured in a free speech case -- > by determining the cost of providing sufficient police to maintain order. > Costs that are tolerated under the free speech clause may violate the > Establishment Clause, but we ought to measure them the same way. > > > > 2. Here is where we disagree. I don't think the fact that the government > is unwilling (or is too politically dysfunctional) to adopt a less > restrictive alternative allows the state to satisfy strict scrutiny review > by insisting that otherwise feasible less restrictive alternatives are not > politically available. Consider my prior example about an unpopular > speaker. Suppose the state asserts that it has a compelling state interest > in avoiding the disorder that will result from the speaker's public speech. > Assume further that a court determines that a less restrictive way to > further that interest without silencing the speaker is to provide > adequate police protection to the unpopular speaker to maintain order. I > don't think the state's attorney can insist that it has to be allowed to > silence the speaker because the city council would never authorize police > overtime to protect a speaker with such odious views. I just don't see how > a less restrictive alternative test can be meaningfully applied if > political unwillingness to adopt a less restrictive alternative will be > taken to mean that the less restrictive alternative is unavailable and > should not be considered by courts. > > > > If the Court finds in favor of Hobby Lobby, I think it basically holds > that if government wants to provide contraceptive insurance coverage for > the employees of religious employers, it has to choose some way to do that > other than by substantially burdening the religious liberty of the > religious employers. I don't think that application of RFRA violates the > Establishment Clause. I think it leaves the government with several policy > choices that avoid violating the Establishment Clause. From a policy > perspective, there is only one good choice -- providing an alternative > source of insurance coverage. I think the other choices range from bad to > terrible -- amending RFRA to exclude the contraceptive mandate, expanding > RFRA to include non-religious objectors (which might mitigate Establishment > Clause concerns), repealing the contraceptive mandate etc. But I don't see > how applying RFRA in a way that leaves the gover
RE: recommended Hobby Lobby posts
Dear Alan and Chip - Your conversation is (natch!) insightful and helpful. For what it's worth, it is not clear to me (putting aside things the Supreme Court may or may not have said or meant) that either the Establishment Clause or whatever theories of church-state relations and religious-freedom-under-law our Constitution reflects disallow accommodations that "impose[] substantial costs on . . . the public." Why should we regard it as an "establishment" of religion for the government to decide - that is, for (a majority-ish of) "us" to decide that it is "worth it" to structure an otherwise generally applicable regulatory-and-spending regime in such a way that its operation does not impose avoidable burdens on religious exercise, even when the "expense" the community is real? (To ask this is different, it seems to me, than to ask about accommodations that take the form of lifting a burden from A and moving it, directly and particularly, to B. I had understood the Gedicks et al. objection to Hobby Lobby's RFRA claim to be asking about these.) I agree, certainly, that "religion is different" but it seems to me that this difference is reflected *both* through the rule against "establishments" (and I know we would disagree about precisely what constitutes an "establishment" and what does not) *and* through an admittedly not-uniform tradition (even if not through Free Exercise Clause doctrine) of accommodating religion, religious objections, and religious exercise when it's possible to do so. In our tradition, I think, "religious freedom" is not just a private benefit - something that is conferred on particular beneficiaries - but also a public good - something we are, as a political community, allowed and even encouraged to pursue, promote, and if necessary pay for. Do you disagree, or am I reading too much into Alan's mention of "the public"? All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu<mailto:rgarn...@nd.edu> To download my scholarly papers, please visit my SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://mirrorofjustice.blogs.com/> Twitter: @RickGarnett<https://twitter.com/RickGarnett> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Friday, February 21, 2014 1:22 AM To: Law & Religion issues for Law Academics Subject: RE: recommended Hobby Lobby posts These are very helpful responses, Chip. Let me try to use them to identify and clarify where I think we agree and disagree. 1. I agree that Religion is different and the Establishment Clause is part of what makes it different. The fact that free speech doctrine requires government to allow the exercise of a right even when doing so imposes substantial costs on third parties or the public does not mean that religious accommodations can impose a similar magnitude of costs on third parties or the public without violating the Establishment Clause. I also agree that the Establishment Clause limit is hard to identify, but it is certainly there and operates as a constraint on accommodations. But my example wasn't intended to suggest that the magnitude of costs acceptable in free speech cases parallels the magnitude of permissible costs for Establishment Clause purposes. My point was that the way we measure costs should operate the same way for both free speech and Establishment Clause purposes. In both cases, harm should be evaluated by determining the cost of mitigation, not by evaluating the cost of unmitigated consequences. If a religious group was going to engage in an unpopular ritual -- an animal sacrifice, for example -- and the state wanted to prohibit it from doing so to avoid disorder, property damage etc. caused by people who wanted to stop the ritual from happening, the state's interest in a RFRA type case should be measured in the same way it would be measured in a free speech case -- by determining the cost of providing sufficient police to maintain order. Costs that are tolerated under the free speech clause may violate the Establishment Clause, but we ought to measure them the same way. 2. Here is where we disagree. I don't think the fact that the government is unwilling (or is too politically dysfunctional) to adopt a less restrictive alternative allows the state to satisfy strict scrutiny review by insisting that otherwise feasible less restrictive alternatives are not politically available. Consider my prior examp
RE: recommended Hobby Lobby posts
agree, I don't really consider the contraceptive mandate to be a regulation of employer-employee relations, like the employment discrimination provisions of Title VII or various labor law statutes. I think the Affordable Care Act is a health insurance law, not an employer-employee relations law. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans whether they are employed or not. Employers are used as a conduit to achieve that health insurance objective for some Americans-- but that is incidental to the ultimate purpose of the legislation which is aimed at all Americans, not just employees. If the contraceptive mandate is viewed as a part of the massive government involvement in arranging for the provision of affordable health care, at least some of which -- through the expansion of Medicaid -- involves the government providing health care coverage directly, it doesn't seem particularly assymetrical to me to suggest that the government itself should shoulder the burden of providing contraceptive insurance coverage to the employees of religious employers. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, February 20, 2014 3:44 PM To: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas Monthly, and Amos, the lines here are not bright. How much cost-shifting is more than the Establishment Clause will tolerate is a matter of degree. The beauty of "de minimis" as the line is 1) it comes from a relevant body of law, related to employer-employee relations, 2) it therefore arrives with legal momentum and quantitative precedent; and 3) it offers symmetry between employees and employers re: how much cost each can impose on the other. (Alan, you might prefer the Title VII standard for religious accommodation to be more generous to employees than "de minimis." But that's not the law.) Chip On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein mailto:aebrownst...@ucdavis.edu>> wrote: With regard to Jim’s post (and Chip and Bob’s piece), I appreciate the argument that in employment cases RFRA should be interpreted the same way that Title VII has been interpreted --- essentially denying all RFRA claims that would impose more than de minimis costs on third parties or the public. But I have several questions about it. First, if we accept Chip and Bob’s argument that accommodating Hobby Lobby would impose significant and serious costs on third parties, resolving this case against Hobby Lobby doesn’t require an interpretation of RFRA that is as limiting as the one that they propose. Aren’t there harms that are more th
Re: recommended Hobby Lobby posts
Mark Scarberry writes "We are on a slippery slope when we refer to someone as seeking to have "the government[] ... authorize [it] to act on religious beliefs in ways that harm others," when what is at stake is whether the government can force that person to do something for others in violation of religious conscience. This comes very close to saying that the government authorizes whatever it does not prohibit." Mark's concern is very apt in a world of lightly regulated relationships between people who are not in a legally constructed relationship. The government does not "authorize" me to be rude to my neighbors when it fails to prohibit the rudeness. But the employment relation is a highly regulated contractual one, with all sorts of legal duties imposed on parties, especially on employers. So if government prescribes terms for that relationship -- e.g., provide a safe workplace -- then an exemption from those terms is "authorization" to behave differently and alter the contract to the detriment of the other party. The minimum coverages -- contraceptive and otherwise -- are now effectively part of the employment contract in firms with 50+ employees, and the only ways out are 1) keep your pre-ACA plan, or 2) pay the assessable payment for dropping or not obtaining coverage. (If you do the latter, your employees can buy coverage on the exchanges, and they will get all the coverages.) An exemption from these minimum coverages "authorizes" employers to do something different, and thereby deprive their employees of the minimum coverages through either employment or purchase on the exchanges. The "grandfather" exemption, whatever else we say about it (such as its design as a transition rule), also authorizes deprivation of coverages, but NOT as a result of religious belief. The Establishment Clause limits the power of government to authorize employers to deprive employees of minimum coverages (or other statutorily mandatory terms of the employment relation) for reasons of employer religious belief. (Maybe Mark and others think Caldor is wrong; but if it's right, there is an Establishment Clause problem here, and it doesn't go away just because Hobby Lobby and Conestoga Wood have ignored it in the litigation thus far.) On Thu, Feb 20, 2014 at 7:01 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > Two quick points before I have to prepare for class: > > > > We are on a slippery slope when we refer to someone as seeking to have > "the government[] ... authorize [it] to act on religious beliefs in ways that > harm others," when what is at stake is whether the government can force > that person to do something for others in violation of religious > conscience. This comes very close to saying that the government authorizes > whatever it does not prohibit. > > > > Political considerations should play no role when we ask whether the > government has another way to advance its interests. Regardless of whether > the people or their representatives would choose to use that other way, it > must be treated as available for purposes of constitutional analysis. The > choice not to use it may show that the government is not terribly committed > to advancing the particular interest that is at stake, but in any event a > refusal of the government (a government by the people, right?) to utilize a > means of furthering its interests is not a reason for limiting the freedoms > of those who do not want to be used to advance that interest. The costs of > using the alternative may be relevant, but the refusal of the people to > authorize its use is not. > > > > Mark > > > > Mark S. Scarberry > > Professor of Law > > Pepperdine Univ. School of Law > > > > > > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Thursday, February 20, 2014 3:44 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: recommended Hobby Lobby posts > > > > Very good questions, Alan. Three replies (in reverse order of your > questions): > > > > 1. Other rights contexts (like free speech) where third party costs are > present -- Religion is different. The Establishment Clause is a limit on > the government's power to authorize one party to act on religious beliefs > in ways that harm others. Government vigorously protects labor speech in > the workplace, even though it may lead workers to unionize and cost > employers money (way more than de minimis in some cases). But Thornton v. > Caldor explicitly, and the Title VII line of cases about religious > accommodation (in these, implicitly) impose limits on the power of A to > shif
Re: recommended Hobby Lobby posts
I agree with Chip about the political realities of a public option. Even if that option were politically viable, I don’t see how the public option can be considered a less restrictive alternative in cases dealing with exemptions from regulations. Employers have previously brought free exercise challenges to things like federal minimum wage laws and equal pay laws. Those challenges have been rejected. But if an employer has a religious objection to paying the minimum wage, the government could step in and pay a salary supplement. If an employer has a religious objection to paying women as much as men, the government could step in and make up the difference directly. United States v. Lee would have also come out differently – the government could have chipped in the missing social security payments there, too. And so on and so on: virtually every regulation governing health, safety, wage, working conditions – any regulation that requires a private party to do something – could be rewritten so that the government performs the action itself. If the “public option” is considered to be a less restrictive alternative, then we’re in a world of state-run everything. On Feb 20, 2014, at 7:01 PM, Scarberry, Mark mailto:mark.scarbe...@pepperdine.edu>> wrote: Two quick points before I have to prepare for class: We are on a slippery slope when we refer to someone as seeking to have “the government[] … authorize [it] to act on religious beliefs in ways that harm others,” when what is at stake is whether the government can force that person to do something for others in violation of religious conscience. This comes very close to saying that the government authorizes whatever it does not prohibit. Political considerations should play no role when we ask whether the government has another way to advance its interests. Regardless of whether the people or their representatives would choose to use that other way, it must be treated as available for purposes of constitutional analysis. The choice not to use it may show that the government is not terribly committed to advancing the particular interest that is at stake, but in any event a refusal of the government (a government by the people, right?) to utilize a means of furthering its interests is not a reason for limiting the freedoms of those who do not want to be used to advance that interest. The costs of using the alternative may be relevant, but the refusal of the people to authorize its use is not. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 20, 2014 3:44 PM To: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutte
RE: recommended Hobby Lobby posts
Two quick points before I have to prepare for class: We are on a slippery slope when we refer to someone as seeking to have "the government[] ... authorize [it] to act on religious beliefs in ways that harm others," when what is at stake is whether the government can force that person to do something for others in violation of religious conscience. This comes very close to saying that the government authorizes whatever it does not prohibit. Political considerations should play no role when we ask whether the government has another way to advance its interests. Regardless of whether the people or their representatives would choose to use that other way, it must be treated as available for purposes of constitutional analysis. The choice not to use it may show that the government is not terribly committed to advancing the particular interest that is at stake, but in any event a refusal of the government (a government by the people, right?) to utilize a means of furthering its interests is not a reason for limiting the freedoms of those who do not want to be used to advance that interest. The costs of using the alternative may be relevant, but the refusal of the people to authorize its use is not. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 20, 2014 3:44 PM To: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas Monthly, and Amos, the lines here are not bright. How much cost-shifting is more than the Establishment Clause will tolerate is a matter of degree. The beauty of "de minimis" as the line is 1) it comes from a relevant body of law, related to employer-employee relations, 2) it therefore arrives with legal momentum and quantitative precedent; and 3) it offers symmetry between employees and employers re: how much cost each can impose on the other. (Alan, you might prefer the Title VII standard for religious accommodation to be more generous to employees than "de minimis." But that's not the law.) Chip On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein mailto:aebrownst...@ucdavis.edu>> wrote: With regard to Jim's post (and Chip and Bob's piece), I appreciate the argument that in employment cases RFRA should be interpreted the same way that Title VII has been interpreted --- essentially denying all RFRA claims that would impose more than de minimis costs on third parties or the public. But I have several questions about it. First, if we accept Chip and Bob's argument that accommodating Hobby Lobby would impose significant and serious costs on third parties, resolving this case against Hobby Lobby doesn't require an interpretation of
Re: recommended Hobby Lobby posts
Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas Monthly, and Amos, the lines here are not bright. How much cost-shifting is more than the Establishment Clause will tolerate is a matter of degree. The beauty of "de minimis" as the line is 1) it comes from a relevant body of law, related to employer-employee relations, 2) it therefore arrives with legal momentum and quantitative precedent; and 3) it offers symmetry between employees and employers re: how much cost each can impose on the other. (Alan, you might prefer the Title VII standard for religious accommodation to be more generous to employees than "de minimis." But that's not the law.) Chip On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein wrote: > With regard to Jim's post (and Chip and Bob's piece), I appreciate the > argument that in employment cases RFRA should be interpreted the same way > that Title VII has been interpreted --- essentially denying all RFRA > claims that would impose more than de minimis costs on third parties or > the public. But I have several questions about it. > > > > First, if we accept Chip and Bob's argument that accommodating Hobby Lobby > would impose significant and serious costs on third parties, resolving this > case against Hobby Lobby doesn't require an interpretation of RFRA that is > as limiting as the one that they propose. Aren't there harms that are more > than de minimis, yet not sufficiently costly to justify the substantial > burdening of religious liberty? > > > > Second, exactly why should the scope of RFRA be so drastically constrained > in employment cases? What distinguishes these kinds of cases from other > accommodation cases - many of which will also impose some costs on third > parties, the state, or the general public? > > > > Third, many commentators have argued that the cost of accommodating Hobby > Lobby should be construed to be the cost of the government setting up an > alternative insurance framework for providing contraceptive coverage for > the employees of religiously exempt employers. The literal cost of doing so > may not be very high. There are ways of conditioning the granting of any > accommodation to offset whatever those costs may be to a considerable > extent. Providing insurance coverage would not require administratively > complex, individualized interventions by the government. And, for many of > us, the government providing health care coverage is the most desirable and > efficient way of extending health insurance coverage in our society in the > first place. The use of employers as a conduit for providing coverage > provides few if any advantages in comparison to a government insurance > program. So if we are focusing on the cost of accommodating Hobby Lobby, > why isn't this the cost we should be evaluating. > > > > Typically in other rights contexts, we focus on the cost of mitigation, > not the potential harm of unmitigated consequences. Thus, if an unpopular > speaker wa
Re: recommended Hobby Lobby posts
Alan: I'll let Chip speak for himself, but I don't think the relevant distinction is so much between employment cases and all others as it is between cases *in the commercial sector *(especially claims brought by for-profit enterprises) and all others. In *Piggie Park*, for example, the harm was borne by customers, not employees, but the result was the same. On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein wrote: > With regard to Jim's post (and Chip and Bob's piece), I appreciate the > argument that in employment cases RFRA should be interpreted the same way > that Title VII has been interpreted --- essentially denying all RFRA > claims that would impose more than de minimis costs on third parties or > the public. But I have several questions about it. > > > > First, if we accept Chip and Bob's argument that accommodating Hobby Lobby > would impose significant and serious costs on third parties, resolving this > case against Hobby Lobby doesn't require an interpretation of RFRA that is > as limiting as the one that they propose. Aren't there harms that are more > than de minimis, yet not sufficiently costly to justify the substantial > burdening of religious liberty? > > > > Second, exactly why should the scope of RFRA be so drastically constrained > in employment cases? What distinguishes these kinds of cases from other > accommodation cases - many of which will also impose some costs on third > parties, the state, or the general public? > > > > Third, many commentators have argued that the cost of accommodating Hobby > Lobby should be construed to be the cost of the government setting up an > alternative insurance framework for providing contraceptive coverage for > the employees of religiously exempt employers. The literal cost of doing so > may not be very high. There are ways of conditioning the granting of any > accommodation to offset whatever those costs may be to a considerable > extent. Providing insurance coverage would not require administratively > complex, individualized interventions by the government. And, for many of > us, the government providing health care coverage is the most desirable and > efficient way of extending health insurance coverage in our society in the > first place. The use of employers as a conduit for providing coverage > provides few if any advantages in comparison to a government insurance > program. So if we are focusing on the cost of accommodating Hobby Lobby, > why isn't this the cost we should be evaluating. > > > > Typically in other rights contexts, we focus on the cost of mitigation, > not the potential harm of unmitigated consequences. Thus, if an unpopular > speaker wants to speak in a location where his message is likely to poorly > received, the government cannot silence the speaker on the grounds that > allowing him to speak would cause disorder and damage to property or > persons. Instead, the harm would be the cost of hiring sufficient police > and public safety personnel to maintain order at the event. Typically, > except in the most egregious cases, the government does not have a > compelling state interest in avoiding those financial costs of mitigation. > > > > Alan > > > > On a different note, I want to second Marty's recommendation of the > symposium over at SCOTUS Blog. Specifically, I highly recommend folks take > a look at Chip and Bob's piece, which makes an important argument calling > for symmetry between the treatment of employee accommodations under Title > VII and employer accommodations under RFRA (in both cases this avoids > establishment concerns raised by exemptions that impose more than de > minimis burdens on others). Chip and Bob's piece is available here: > http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ > > > - Jim > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > ___ 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: recommended Hobby Lobby posts
With regard to Jim's post (and Chip and Bob's piece), I appreciate the argument that in employment cases RFRA should be interpreted the same way that Title VII has been interpreted --- essentially denying all RFRA claims that would impose more than de minimis costs on third parties or the public. But I have several questions about it. First, if we accept Chip and Bob's argument that accommodating Hobby Lobby would impose significant and serious costs on third parties, resolving this case against Hobby Lobby doesn't require an interpretation of RFRA that is as limiting as the one that they propose. Aren't there harms that are more than de minimis, yet not sufficiently costly to justify the substantial burdening of religious liberty? Second, exactly why should the scope of RFRA be so drastically constrained in employment cases? What distinguishes these kinds of cases from other accommodation cases - many of which will also impose some costs on third parties, the state, or the general public? Third, many commentators have argued that the cost of accommodating Hobby Lobby should be construed to be the cost of the government setting up an alternative insurance framework for providing contraceptive coverage for the employees of religiously exempt employers. The literal cost of doing so may not be very high. There are ways of conditioning the granting of any accommodation to offset whatever those costs may be to a considerable extent. Providing insurance coverage would not require administratively complex, individualized interventions by the government. And, for many of us, the government providing health care coverage is the most desirable and efficient way of extending health insurance coverage in our society in the first place. The use of employers as a conduit for providing coverage provides few if any advantages in comparison to a government insurance program. So if we are focusing on the cost of accommodating Hobby Lobby, why isn't this the cost we should be evaluating. Typically in other rights contexts, we focus on the cost of mitigation, not the potential harm of unmitigated consequences. Thus, if an unpopular speaker wants to speak in a location where his message is likely to poorly received, the government cannot silence the speaker on the grounds that allowing him to speak would cause disorder and damage to property or persons. Instead, the harm would be the cost of hiring sufficient police and public safety personnel to maintain order at the event. Typically, except in the most egregious cases, the government does not have a compelling state interest in avoiding those financial costs of mitigation. Alan On a different note, I want to second Marty's recommendation of the symposium over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip and Bob's piece, which makes an important argument calling for symmetry between the treatment of employee accommodations under Title VII and employer accommodations under RFRA (in both cases this avoids establishment concerns raised by exemptions that impose more than de minimis burdens on others). Chip and Bob's piece is available here: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ - Jim ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: recommended Hobby Lobby posts
I assume that Marci wasn’t there for the floor debate. There were many statements, they were very explicit, both sides agreed. Corporations would be covered based on the religious views of their owners or senior management. What takes a tortured reading is not to take those statements at face value. 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 Marci Hamilton Sent: Thursday, February 20, 2014 1:49 PM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts As someone who was involved in RLPA in Congress from day one through many hearings, only a tortured reading of history supports the notion that Congress believed that its proponents believed RFRA should apply to for-profit organizations let alone that they intended it to. Given current deadlines I cannot add more , but I look forward to reading Jim's piece and will be doing something of my own closer to the argument. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 20, 2014, at 12:34 PM, James Oleske mailto:jole...@lclark.edu> > wrote: I have a short essay coming out next month that offers a considerably different take than Doug on both the legislative history of RLPA and the text of the 1999 version of RLPA as compared to RFRA. A draft of the essay is available here: Obamacare, RFRA, and the Perils of Legislative History http://ssrn.com/abstract=2398763 The relevant discussion can be found on pages 5-10 of the draft. My bottom-line conclusion is that "the 1998 and 1999 debates over RLPA fall far short of demonstrating an 'undisputed public understanding that the language in RFRA protected for-profit corporations and their owners.'" On the specific claim that the text of RFRA and RLPA were identical, I make the same point I see Marty has made in his separate response to Doug -- the 1999 RLPA has a "broad construction" provision that was in neither the 1998 RLPA or RFRA. Thus, the more relevant RLPA legislative history is the 1998 debate, not the 1999 debate Doug relies upon in the CLS amicus brief and his SCOTUS Blog post. And the 1998 testimony casts considerable doubt on the claim that large for-profit businesses are protected by RFRA. On a different note, I want to second Marty's recommendation of the symposium over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip and Bob's piece, which makes an important argument calling for symmetry between the treatment of employee accommodations under Title VII and employer accommodations under RFRA (in both cases this avoids establishment concerns raised by exemptions that impose more than de minimis burdens on others). Chip and Bob's piece is available here: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ - Jim On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock mailto:dlayc...@virginia.edu> > wrote: I have not gone back to review all the RLPA testimony, but yes we did predict that large commercial businesses seeking religious exemptions from civil rights laws would generally lose. The context of that testimony was civil rights claims. And it was a prediction of what the courts would do in fact, not a judgment about what they should do. But I would probably be comfortable with most of the results we predicted. The kinds of civil rights claims RLPA’s supporters wanted to preserve mostly did not arise in business situations. Religious discrimination by religious organizations setting their criteria for membership, as in CLS v. Martinez, is rarely a legitimate business interest. Sex and marital-status discrimination in the ordination of a celibate male clergy is not a business interest. The existing examples at the time were the landlord-tenant cases, all of which involved small landlords. People could envision issues with kosher butchers and Christian bookstores, and with the broad reach of some state civil rights laws. Some state laws prohibit discrimination on the basis of “any lawful off-the-job activity.” Think the church secretary moonlighting in an abortion clinic, or a strip club, or any other business that is lawful but disreputable in the view of some. Same-sex marriage was on the far horizon; I don’t recall anyone thinking about wedding photographers and the like. I believed that as the business grows, it becomes less plausible to view it as a personal extension of the owner. Mrs. Smith with two duplexes may feel morally responsible for every unit, and she may be doing all the work o
Re: recommended Hobby Lobby posts
A clarification of my own view on this question: I doubt many members of Congress in 1998/99 -- let alone in 1993 -- gave any thought at all to the question of whether large, for-profit companies and/or their owners or directors could *bring a claim *under RFRA/RLPA. But I imagine Doug is right that the vast majority, if asked, would have assumed the answer was "yes." Even so, what seems even more certain is that no such enterprise had ever *prevailed *under RFRA or the FEC, and therefore, virtually all members of Congress would have shared Doug's view in his testimony that such enterprises *would virtually never ever prevail*, even if they got into court. Indeed, the whole point of the effort of Doug and others (including some of us in the executive branch) was to reassure the uneasy members of Congress that the bill, even as amended, would not change the historical norm. On Thu, Feb 20, 2014 at 1:49 PM, Marci Hamilton wrote: > As someone who was involved in RLPA in Congress from day one through many > hearings, only a tortured reading of history supports the notion that > Congress believed that its proponents believed RFRA should apply to > for-profit organizations let alone that they intended it to. > > Given current deadlines I cannot add more , but I look forward to reading > Jim's piece and will be doing something of my own closer to the argument. > > Marci > > > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Feb 20, 2014, at 12:34 PM, James Oleske wrote: > > I have a short essay coming out next month that offers a considerably > different take than Doug on both the legislative history of RLPA and the > text of the 1999 version of RLPA as compared to RFRA. A draft of the essay > is available here: > > Obamacare, RFRA, and the Perils of Legislative History > http://ssrn.com/abstract=2398763 > > The relevant discussion can be found on pages 5-10 of the draft. My > bottom-line conclusion is that "the 1998 and 1999 debates over RLPA fall > far short of demonstrating an 'undisputed public understanding that the > language in RFRA protected for-profit corporations and their owners.'" > > On the specific claim that the text of RFRA and RLPA were identical, I > make the same point I see Marty has made in his separate response to Doug > -- the 1999 RLPA has a "broad construction" provision that was in neither > the 1998 RLPA or RFRA. Thus, the more relevant RLPA legislative history is > the 1998 debate, not the 1999 debate Doug relies upon in the CLS amicus > brief and his SCOTUS Blog post. And the 1998 testimony casts considerable > doubt on the claim that large for-profit businesses are protected by RFRA. > > On a different note, I want to second Marty's recommendation of the > symposium over at SCOTUS Blog. Specifically, I highly recommend folks take > a look at Chip and Bob's piece, which makes an important argument calling > for symmetry between the treatment of employee accommodations under Title > VII and employer accommodations under RFRA (in both cases this avoids > establishment concerns raised by exemptions that impose more than de > minimis burdens on others). Chip and Bob's piece is available here: > http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ > > - Jim > > On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock wrote: > >> I have not gone back to review all the RLPA testimony, but yes we did >> predict that large commercial businesses seeking religious exemptions from >> civil rights laws would generally lose. >> >> >> >> The context of that testimony was civil rights claims. And it was a >> prediction of what the courts would do in fact, not a judgment about what >> they should do. But I would probably be comfortable with most of the >> results we predicted. >> >> >> >> The kinds of civil rights claims RLPA's supporters wanted to preserve >> mostly did not arise in business situations. Religious discrimination by >> religious organizations setting their criteria for membership, as in *CLS >> v. Martinez*, is rarely a legitimate business interest. Sex and >> marital-status discrimination in the ordination of a celibate male clergy >> is not a business interest. >> >> >> >> The existing examples at the time were the landlord-tenant cases, all of >> which involved small landlords. People could envision issues with kosher >> butchers and Christian bookstores, and with the broad reach of some state >> civil rights laws. Some state laws prohibit discrimination on the basis of >> "any lawful off-the-job activity." Think the church secretary moonlighting >> in an abortion clinic, or a strip club, or any other business that is >> lawful but disreputable in the view of some. >> >> Same-sex marriage was on the far horizon; I don't recall anyone thinking >> about wedding photographers and the like. >> >> >> >> I believed that as the business grows, it becomes less plausib
Re: recommended Hobby Lobby posts
As someone who was involved in RLPA in Congress from day one through many hearings, only a tortured reading of history supports the notion that Congress believed that its proponents believed RFRA should apply to for-profit organizations let alone that they intended it to. Given current deadlines I cannot add more , but I look forward to reading Jim's piece and will be doing something of my own closer to the argument. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton > On Feb 20, 2014, at 12:34 PM, James Oleske wrote: > > I have a short essay coming out next month that offers a considerably > different take than Doug on both the legislative history of RLPA and the text > of the 1999 version of RLPA as compared to RFRA. A draft of the essay is > available here: > > Obamacare, RFRA, and the Perils of Legislative History > http://ssrn.com/abstract=2398763 > > The relevant discussion can be found on pages 5-10 of the draft. My > bottom-line conclusion is that "the 1998 and 1999 debates over RLPA fall far > short of demonstrating an 'undisputed public understanding that the language > in RFRA protected for-profit corporations and their owners.'" > > On the specific claim that the text of RFRA and RLPA were identical, I make > the same point I see Marty has made in his separate response to Doug -- the > 1999 RLPA has a "broad construction" provision that was in neither the 1998 > RLPA or RFRA. Thus, the more relevant RLPA legislative history is the 1998 > debate, not the 1999 debate Doug relies upon in the CLS amicus brief and his > SCOTUS Blog post. And the 1998 testimony casts considerable doubt on the > claim that large for-profit businesses are protected by RFRA. > > On a different note, I want to second Marty's recommendation of the symposium > over at SCOTUS Blog. Specifically, I highly recommend folks take a look at > Chip and Bob's piece, which makes an important argument calling for symmetry > between the treatment of employee accommodations under Title VII and employer > accommodations under RFRA (in both cases this avoids establishment concerns > raised by exemptions that impose more than de minimis burdens on others). > Chip and Bob's piece is available here: > http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ > > - Jim > >> On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock >> wrote: >> I have not gone back to review all the RLPA testimony, but yes we did >> predict that large commercial businesses seeking religious exemptions from >> civil rights laws would generally lose. >> >> >> >> The context of that testimony was civil rights claims. And it was a >> prediction of what the courts would do in fact, not a judgment about what >> they should do. But I would probably be comfortable with most of the results >> we predicted. >> >> >> >> The kinds of civil rights claims RLPA’s supporters wanted to preserve mostly >> did not arise in business situations. Religious discrimination by religious >> organizations setting their criteria for membership, as in CLS v. Martinez, >> is rarely a legitimate business interest. Sex and marital-status >> discrimination in the ordination of a celibate male clergy is not a business >> interest. >> >> >> >> The existing examples at the time were the landlord-tenant cases, all of >> which involved small landlords. People could envision issues with kosher >> butchers and Christian bookstores, and with the broad reach of some state >> civil rights laws. Some state laws prohibit discrimination on the basis of >> “any lawful off-the-job activity.” Think the church secretary moonlighting >> in an abortion clinic, or a strip club, or any other business that is lawful >> but disreputable in the view of some. >> >> Same-sex marriage was on the far horizon; I don’t recall anyone thinking >> about wedding photographers and the like. >> >> >> >> I believed that as the business grows, it becomes less plausible to view it >> as a personal extension of the owner. Mrs. Smith with two duplexes may feel >> morally responsible for every unit, and she may be doing all the work of >> leasing and maintenance herself. A landlord with multiple apartment >> complexes is less likely to feel that moral responsibility, and less likely >> to persuade a court that he does. He certainly does not have to become >> personally involved with what he considers the immoral use of his property >> by particular tenants. And as the business grows, the government’s interest >> grows. >> >> >> >> I did not envision at the time, and I don’t know that anyone else did, a >> case like Hobby Lobby. Here the business is large, but it is closely held by >> devoutly religious and religiously unanimous owners. The government is >> demanding a decision that must be made at the level of senior management for >> the entire cor
Re: recommended Hobby Lobby posts
I have a short essay coming out next month that offers a considerably different take than Doug on both the legislative history of RLPA and the text of the 1999 version of RLPA as compared to RFRA. A draft of the essay is available here: Obamacare, RFRA, and the Perils of Legislative History http://ssrn.com/abstract=2398763 The relevant discussion can be found on pages 5-10 of the draft. My bottom-line conclusion is that "the 1998 and 1999 debates over RLPA fall far short of demonstrating an 'undisputed public understanding that the language in RFRA protected for-profit corporations and their owners.'" On the specific claim that the text of RFRA and RLPA were identical, I make the same point I see Marty has made in his separate response to Doug -- the 1999 RLPA has a "broad construction" provision that was in neither the 1998 RLPA or RFRA. Thus, the more relevant RLPA legislative history is the 1998 debate, not the 1999 debate Doug relies upon in the CLS amicus brief and his SCOTUS Blog post. And the 1998 testimony casts considerable doubt on the claim that large for-profit businesses are protected by RFRA. On a different note, I want to second Marty's recommendation of the symposium over at SCOTUS Blog. Specifically, I highly recommend folks take a look at Chip and Bob's piece, which makes an important argument calling for symmetry between the treatment of employee accommodations under Title VII and employer accommodations under RFRA (in both cases this avoids establishment concerns raised by exemptions that impose more than de minimis burdens on others). Chip and Bob's piece is available here: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ - Jim On Thu, Feb 20, 2014 at 7:30 AM, Douglas Laycock wrote: > I have not gone back to review all the RLPA testimony, but yes we did > predict that large commercial businesses seeking religious exemptions from > civil rights laws would generally lose. > > > > The context of that testimony was civil rights claims. And it was a > prediction of what the courts would do in fact, not a judgment about what > they should do. But I would probably be comfortable with most of the > results we predicted. > > > > The kinds of civil rights claims RLPA's supporters wanted to preserve > mostly did not arise in business situations. Religious discrimination by > religious organizations setting their criteria for membership, as in *CLS > v. Martinez*, is rarely a legitimate business interest. Sex and > marital-status discrimination in the ordination of a celibate male clergy > is not a business interest. > > > > The existing examples at the time were the landlord-tenant cases, all of > which involved small landlords. People could envision issues with kosher > butchers and Christian bookstores, and with the broad reach of some state > civil rights laws. Some state laws prohibit discrimination on the basis of > "any lawful off-the-job activity." Think the church secretary moonlighting > in an abortion clinic, or a strip club, or any other business that is > lawful but disreputable in the view of some. > > Same-sex marriage was on the far horizon; I don't recall anyone thinking > about wedding photographers and the like. > > > > I believed that as the business grows, it becomes less plausible to view > it as a personal extension of the owner. Mrs. Smith with two duplexes may > feel morally responsible for every unit, and she may be doing all the work > of leasing and maintenance herself. A landlord with multiple apartment > complexes is less likely to feel that moral responsibility, and less likely > to persuade a court that he does. He certainly does not have to become > personally involved with what he considers the immoral use of his property > by particular tenants. And as the business grows, the government's interest > grows. > > > > I did not envision at the time, and I don't know that anyone else did, a > case like *Hobby Lobby*. Here the business is large, but it is closely > held by devoutly religious and religiously unanimous owners. The government > is demanding a decision that must be made at the level of senior management > for the entire corporation; in 1998 and 99, people were thinking about > issues posed by one customer somewhere, to be dealt with by a rank-and-file > employee where it arose. And the owners and senior management understand > the decision the government wants to be profoundly evil - to require that > they cause their corporation to pay for, contract for, arrange for, and > provide to their employees and present as normal the option of killing > innocent human beings. That's not my view of emergency contraception and > IUDs, but it is theirs. > > > > I would not want a decision in *Hobby Lobby* limited to those facts, and > I'm not sure where I would draw the line. But no one in 1998 and 1999 was > thinking about, or predicting judicial reaction to, a case like this. > > > > Douglas Laycock > > Robert E. Scot
Re: recommended Hobby Lobby posts
P.S. None of this is germane to my principal point, which was simply that it is a mistake to say that "If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*." One can certainly argue that federal law imposes substantial pressure *not to drop one's employee plan*, and to instead include contraception coverage (I disagree, but I understand the argument). But *that *is the consequence at issue -- *not* being "barred from owning any business with more than fifty employees." On Thu, Feb 20, 2014 at 11:56 AM, Marty Lederman wrote: > Quick responses to these two points: > > 1. When I referred to differences between RLPA and RFRA, I was alluding > to the amendment to RLPA at that time providing that "This Act should be > construed in favor of a broad protection of religious exercise, *to the > maximum extent permitted* *by its terms* and the Constitution." IIRC, > that amendment caused much consternation about how RLPA, much more than > RFRA and the FEC, would lead to civil rights exemptions. > > 2. Many thousands of employers will in fact drop (or decline to offer in > the first instance) an employee health plan--so it's not remotely > unthinkable; it's expected to occur quite frequently (although predictions > vary on the percentages). More to the point, *I *don't have to persuade > you, nor does the government, that it is a "viable" option. The burden is *on > the plaintiffs *to demonstrate that federal law imposes substantial > pressure on them *not* to drop their plans -- and they haven't introduced > or alleged any evidence at all to that effect, let alone alleged facts that > would survive *Iqbal/Trombley*. > > Moreover, even if the plaintiffs had alleged facts to demonstrate that > *some* employees would be upset if the plan were dropped, so what? There > still wouldn't be proof (i) that federal law (as opposed to the > Obama-hatred you invoke) would be the cause of that hatred; (ii) that a > greater number of employees in the case of these employers wouldn't be > *happier* with a combination of subsidized, full plans on the exchange > and increased salaries; or (iii) most importantly, that any resulting > employee resentment would impose *substantial pressure *on the companies > to keep their plans, even if it meant including contraception coverage. > > > On Thu, Feb 20, 2014 at 10:07 AM, Douglas Laycock > wrote: > >> Marty raises multiple issues here. >> >> >> >> *First*: The operative language of RLPA was identical to RFRA. They >> inserted restrictions that limited the application of that language to >> cases that affected commerce, arose in programs receiving federal financial >> assistance, or involved individualized assessments of regulated activity. >> They moved a modifying clause from the end of what it modified to the >> beginning of what it modified. But on the section setting out exercise of >> religion, substantial burden, compelling interest, and least restrictive >> means, they changed nothing that could remotely have affected substance. >> >> >> >> *Second*: Employers could just drop health insurance, but I'm not sure >> anyone but Marty is persuaded that that's a viable option. Certainly there >> is no evidence in the record of either case showing that either employer >> could drop health insurance, pay the fines, give the employees a big enough >> raise that they could all bluy individual coverage on the exchanges, and >> everyone breaks even or comes out ahead. >> >> >> >> Nor is there any reason to think that an employer could do this without >> generating massive employee ill will and seriously damaging its competitive >> position in the market place. For starters, all the people who hate Barack >> Obama and anything he has ever touched or endorsed, and many of those who >> oppose the Affordable Care Act on more rational grounds, would be furious >> at being "dumped" into the exchanges. A very large minority of the >> company's employees would be angry, and a very large minority of the >> potential employment pool would view the employer as a much less desirable >> place to work. Many employees of all political views might prefer that >> their employer do the work of evaluating health plans and choosing a good >> one, sparing them the burden. >> >> >> >> And for decades, a job with full benefits has been the marker of >> first-tier employment; jobs without health insurance are distinctly >> inferior. That may eventually change, when political passions have cooled, >> when the exchanges are functioning smoothly, when their continuous >> existence seems assured. But we certainly aren't there yet. An employer >> following Marty's strategy would suffer serious damage in the employment >> market, and suffer that damage for its owners' religious exercise. As in >> *Sherbert >> v. Verner*, that economic damage is a burden on the underlying
Re: recommended Hobby Lobby posts
Quick responses to these two points: 1. When I referred to differences between RLPA and RFRA, I was alluding to the amendment to RLPA at that time providing that "This Act should be construed in favor of a broad protection of religious exercise, *to the maximum extent permitted* *by its terms* and the Constitution." IIRC, that amendment caused much consternation about how RLPA, much more than RFRA and the FEC, would lead to civil rights exemptions. 2. Many thousands of employers will in fact drop (or decline to offer in the first instance) an employee health plan--so it's not remotely unthinkable; it's expected to occur quite frequently (although predictions vary on the percentages). More to the point, *I *don't have to persuade you, nor does the government, that it is a "viable" option. The burden is *on the plaintiffs *to demonstrate that federal law imposes substantial pressure on them *not* to drop their plans -- and they haven't introduced or alleged any evidence at all to that effect, let alone alleged facts that would survive *Iqbal/Trombley*. Moreover, even if the plaintiffs had alleged facts to demonstrate that *some* employees would be upset if the plan were dropped, so what? There still wouldn't be proof (i) that federal law (as opposed to the Obama-hatred you invoke) would be the cause of that hatred; (ii) that a greater number of employees in the case of these employers wouldn't be *happier* with a combination of subsidized, full plans on the exchange and increased salaries; or (iii) most importantly, that any resulting employee resentment would impose *substantial pressure *on the companies to keep their plans, even if it meant including contraception coverage. On Thu, Feb 20, 2014 at 10:07 AM, Douglas Laycock wrote: > Marty raises multiple issues here. > > > > *First*: The operative language of RLPA was identical to RFRA. They > inserted restrictions that limited the application of that language to > cases that affected commerce, arose in programs receiving federal financial > assistance, or involved individualized assessments of regulated activity. > They moved a modifying clause from the end of what it modified to the > beginning of what it modified. But on the section setting out exercise of > religion, substantial burden, compelling interest, and least restrictive > means, they changed nothing that could remotely have affected substance. > > > > *Second*: Employers could just drop health insurance, but I'm not sure > anyone but Marty is persuaded that that's a viable option. Certainly there > is no evidence in the record of either case showing that either employer > could drop health insurance, pay the fines, give the employees a big enough > raise that they could all bluy individual coverage on the exchanges, and > everyone breaks even or comes out ahead. > > > > Nor is there any reason to think that an employer could do this without > generating massive employee ill will and seriously damaging its competitive > position in the market place. For starters, all the people who hate Barack > Obama and anything he has ever touched or endorsed, and many of those who > oppose the Affordable Care Act on more rational grounds, would be furious > at being "dumped" into the exchanges. A very large minority of the > company's employees would be angry, and a very large minority of the > potential employment pool would view the employer as a much less desirable > place to work. Many employees of all political views might prefer that > their employer do the work of evaluating health plans and choosing a good > one, sparing them the burden. > > > > And for decades, a job with full benefits has been the marker of > first-tier employment; jobs without health insurance are distinctly > inferior. That may eventually change, when political passions have cooled, > when the exchanges are functioning smoothly, when their continuous > existence seems assured. But we certainly aren't there yet. An employer > following Marty's strategy would suffer serious damage in the employment > market, and suffer that damage for its owners' religious exercise. As in > *Sherbert > v. Verner*, that economic damage is a burden on the underlying religious > exercise. > > > > *Third* is the testimony supporting RLPA in 98 and 99. I'll put that in a > separate post. > > > > 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 *Marty Lederman > *Sent:* Wednesday, February 19, 2014 10:33 PM > *To:* Law & Religion issues for Law Academics > *Subject:* recommended Hobby Lobby posts > > > > I have some further posts up on Balkinization. More importantly, both > Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of > the SCOTUSblog symposium, which I commend to all of yo
Re: recommended Hobby Lobby posts
I'm a bit confused by Doug's explanation of why this case is different from the civil rights cases that he testified the state would (and usually should) win. I don't share Doug's view of how to characterize what the Greens are required to do here (see my many posts); but for now, let's assume he's right, and that this law would in effect coerce the Greens to do something their religion prohibits. OK, but that was true in the civil rights cases, too -- no one denied, even in *Piggy Park*, that the owners/landlords, etc., believed they were being coerced to cooperate in evil, in a way their religion prohibited. In other words, those cases -- the ones Doug thinks the state would and (usually) should win -- involved a much clearer case of a substantial burden on religious exercise. I had expected Doug to say instead that the difference in the cases was on the government interest side of the line. Is that not what's driving most people's instincts here -- that the state interest here is thought by many (albeit wrongly, in my view) to be less compelling than the interest in preventing discrimination? On Thu, Feb 20, 2014 at 10:30 AM, Douglas Laycock wrote: > I have not gone back to review all the RLPA testimony, but yes we did > predict that large commercial businesses seeking religious exemptions from > civil rights laws would generally lose. > > > > The context of that testimony was civil rights claims. And it was a > prediction of what the courts would do in fact, not a judgment about what > they should do. But I would probably be comfortable with most of the > results we predicted. > > > > The kinds of civil rights claims RLPA's supporters wanted to preserve > mostly did not arise in business situations. Religious discrimination by > religious organizations setting their criteria for membership, as in *CLS > v. Martinez*, is rarely a legitimate business interest. Sex and > marital-status discrimination in the ordination of a celibate male clergy > is not a business interest. > > > > The existing examples at the time were the landlord-tenant cases, all of > which involved small landlords. People could envision issues with kosher > butchers and Christian bookstores, and with the broad reach of some state > civil rights laws. Some state laws prohibit discrimination on the basis of > "any lawful off-the-job activity." Think the church secretary moonlighting > in an abortion clinic, or a strip club, or any other business that is > lawful but disreputable in the view of some. > > Same-sex marriage was on the far horizon; I don't recall anyone thinking > about wedding photographers and the like. > > > > I believed that as the business grows, it becomes less plausible to view > it as a personal extension of the owner. Mrs. Smith with two duplexes may > feel morally responsible for every unit, and she may be doing all the work > of leasing and maintenance herself. A landlord with multiple apartment > complexes is less likely to feel that moral responsibility, and less likely > to persuade a court that he does. He certainly does not have to become > personally involved with what he considers the immoral use of his property > by particular tenants. And as the business grows, the government's interest > grows. > > > > I did not envision at the time, and I don't know that anyone else did, a > case like *Hobby Lobby*. Here the business is large, but it is closely > held by devoutly religious and religiously unanimous owners. The government > is demanding a decision that must be made at the level of senior management > for the entire corporation; in 1998 and 99, people were thinking about > issues posed by one customer somewhere, to be dealt with by a rank-and-file > employee where it arose. And the owners and senior management understand > the decision the government wants to be profoundly evil - to require that > they cause their corporation to pay for, contract for, arrange for, and > provide to their employees and present as normal the option of killing > innocent human beings. That's not my view of emergency contraception and > IUDs, but it is theirs. > > > > I would not want a decision in *Hobby Lobby* limited to those facts, and > I'm not sure where I would draw the line. But no one in 1998 and 1999 was > thinking about, or predicting judicial reaction to, a case like this. > > > > 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 *Marty Lederman > *Sent:* Wednesday, February 19, 2014 10:33 PM > *To:* Law & Religion issues for Law Academics > *Subject:* recommended Hobby Lobby posts > > > > I have some further posts up on Balkinization. More importantly, both > Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of > the SCOTUSblog symposium, which I co
RE: recommended Hobby Lobby posts
I have not gone back to review all the RLPA testimony, but yes we did predict that large commercial businesses seeking religious exemptions from civil rights laws would generally lose. The context of that testimony was civil rights claims. And it was a prediction of what the courts would do in fact, not a judgment about what they should do. But I would probably be comfortable with most of the results we predicted. The kinds of civil rights claims RLPA's supporters wanted to preserve mostly did not arise in business situations. Religious discrimination by religious organizations setting their criteria for membership, as in CLS v. Martinez, is rarely a legitimate business interest. Sex and marital-status discrimination in the ordination of a celibate male clergy is not a business interest. The existing examples at the time were the landlord-tenant cases, all of which involved small landlords. People could envision issues with kosher butchers and Christian bookstores, and with the broad reach of some state civil rights laws. Some state laws prohibit discrimination on the basis of "any lawful off-the-job activity." Think the church secretary moonlighting in an abortion clinic, or a strip club, or any other business that is lawful but disreputable in the view of some. Same-sex marriage was on the far horizon; I don't recall anyone thinking about wedding photographers and the like. I believed that as the business grows, it becomes less plausible to view it as a personal extension of the owner. Mrs. Smith with two duplexes may feel morally responsible for every unit, and she may be doing all the work of leasing and maintenance herself. A landlord with multiple apartment complexes is less likely to feel that moral responsibility, and less likely to persuade a court that he does. He certainly does not have to become personally involved with what he considers the immoral use of his property by particular tenants. And as the business grows, the government's interest grows. I did not envision at the time, and I don't know that anyone else did, a case like Hobby Lobby. Here the business is large, but it is closely held by devoutly religious and religiously unanimous owners. The government is demanding a decision that must be made at the level of senior management for the entire corporation; in 1998 and 99, people were thinking about issues posed by one customer somewhere, to be dealt with by a rank-and-file employee where it arose. And the owners and senior management understand the decision the government wants to be profoundly evil - to require that they cause their corporation to pay for, contract for, arrange for, and provide to their employees and present as normal the option of killing innocent human beings. That's not my view of emergency contraception and IUDs, but it is theirs. I would not want a decision in Hobby Lobby limited to those facts, and I'm not sure where I would draw the line. But no one in 1998 and 1999 was thinking about, or predicting judicial reaction to, a case like this. 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 Marty Lederman Sent: Wednesday, February 19, 2014 10:33 PM To: Law & Religion issues for Law Academics Subject: recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-c onstructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question- corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always lose under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that "If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, they are barred from owning any business with more than fifty employees." But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are "barred from owning any business with more than fifty employees." Even if the company had fewer than 50 employees, its pl
RE: recommended Hobby Lobby posts
Marty raises multiple issues here. First: The operative language of RLPA was identical to RFRA. They inserted restrictions that limited the application of that language to cases that affected commerce, arose in programs receiving federal financial assistance, or involved individualized assessments of regulated activity. They moved a modifying clause from the end of what it modified to the beginning of what it modified. But on the section setting out exercise of religion, substantial burden, compelling interest, and least restrictive means, they changed nothing that could remotely have affected substance. Second: Employers could just drop health insurance, but I'm not sure anyone but Marty is persuaded that that's a viable option. Certainly there is no evidence in the record of either case showing that either employer could drop health insurance, pay the fines, give the employees a big enough raise that they could all bluy individual coverage on the exchanges, and everyone breaks even or comes out ahead. Nor is there any reason to think that an employer could do this without generating massive employee ill will and seriously damaging its competitive position in the market place. For starters, all the people who hate Barack Obama and anything he has ever touched or endorsed, and many of those who oppose the Affordable Care Act on more rational grounds, would be furious at being "dumped" into the exchanges. A very large minority of the company's employees would be angry, and a very large minority of the potential employment pool would view the employer as a much less desirable place to work. Many employees of all political views might prefer that their employer do the work of evaluating health plans and choosing a good one, sparing them the burden. And for decades, a job with full benefits has been the marker of first-tier employment; jobs without health insurance are distinctly inferior. That may eventually change, when political passions have cooled, when the exchanges are functioning smoothly, when their continuous existence seems assured. But we certainly aren't there yet. An employer following Marty's strategy would suffer serious damage in the employment market, and suffer that damage for its owners' religious exercise. As in Sherbert v. Verner, that economic damage is a burden on the underlying religious exercise. Third is the testimony supporting RLPA in 98 and 99. I'll put that in a separate post. 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 Marty Lederman Sent: Wednesday, February 19, 2014 10:33 PM To: Law & Religion issues for Law Academics Subject: recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-c onstructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question- corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always lose under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that "If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, they are barred from owning any business with more than fifty employees." But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are "barred from owning any business with more than fifty employees." Even if the company had fewer than 50 employees, its plan would still have to include contraception. If any employer, with fewer or more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: "If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, the
