Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.eduwrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. ** ** 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 *b...@jmcenter.org *Sent:* Tuesday, October 02, 2012 11:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise
Re: Contraception and Conscience: A Symposium on Religious Liberty, Women's Health, and the HHS Rule on Provision of Birth Control Coverage for Employees
The videos of our conference are now posted, on a site where we have also posted many of the most important resources (opinions, briefs, the Rule, articles, blogposts, etc.) related to the debate. Hope you find it useful. Please let me know if you have any reactions or suggestions of sources to add to the page: http://berkleycenter.georgetown.edu/essays/resources-and-background-on-contraception-and-conscience Thanks, Marty On Fri, Sep 14, 2012 at 3:39 PM, Marty Lederman lederman.ma...@gmail.comwrote: Please excuse the plug. I hope this is something that those of you in the D.C, environs and beyond might be interested in attending. Thanks *Contraception and Conscience: A Symposium on Religious Liberty, Women’s Health, and the HHS Rule on Provision of Birth Control Coverage for Employees * Georgetown University Law Center McDonough Hall Philip A. Hart Auditorium 600 New Jersey Avenue, N.W. Washington, DC Friday, September 21, 2012 9:00 a.m.-4:00 p.m. A conference examining the legal, theological, health, equality, and ethical issues relating to the recent Rule promulgated by the U.S. Department of Health and Human Services on “Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” The symposium brings together legal, religious, and cultural scholars and practitioners for a day-long conversation about the increasingly contentious public debate surrounding the HHS Rule requiring employers to subsidize preventive health services for employees, the religious accommodations in the HHS rule, and the lawsuits filed by religious objectors challenging the rule. *Continental Breakfast—8:30-9:00 * *Introduction—9:00-9:10 *Dean William M. Treanor, Georgetown University Law Center * Panel One – 9:10-10:45 * *The Legal Challenges to the HHS Contraception Rule*. What is the nature of the HHS Rule and its religious accommodations? What is the status of the more than two dozen lawsuits challenging the HHS Rule? How are the courts likely to resolve the statutory and constitutional issues? How do claims of religious conscience apply to institutional employers, including for-profit employers? What are the relevant state interests—should the Rule be viewed as simply about enabling access to preventive health care, or also about ensuring equality in the workplace? How do these cases reflect broader trends in the development of the law of religious liberty? How should HHS frame its promised additional religious accommodation? *Panelists *Martin Lederman, Georgetown University Law Center Louise Melling, American Civil Liberties Union Melissa Rogers,Wake Forest University Divinity School, Center for Religion and Public Affairs Robert Vischer, University of St. Thomas School of Law Lori Windham, Becket Fund for Religious Liberty *Panel Two – 11:00-12:45 * *What is the Burden on Religious Exercise*? Does the HHS Rule put religious employers to an untenable choice between obeying the law and honoring religious obligations, and if so, how? Does it require individuals or entities to “cooperate with evil” in a manner that their faith forbids? Does compliance with the law prevent them from “bearing witness” to their faith or create “scandal” by conveying endorsement of activities to which the employer morally objects? *Panelists *Lisa Sowle Cahill, Boston College Patrick Deneen, University of Notre Dame Cathleen Kaveny, University of Notre Dame Michael Kessler, Georgetown University John Langan, S.J., Georgetown University Robert Tuttle, George Washington University School of Law *Panel Three – 2:15-4:00 * *A Broader Focus*. How and why did this particular issue engender such concern and controversy? What are the historical antecedents? What does it tell us about how religious communities and institutions (especially those involved in provision of education and social services) can and should navigate rapidly changing norms in the public square? What are the implications of this debate for preventive health services? For women’s equality in the workplace and elsewhere in public life? What are the ethical implications for physicians and other health-care providers? *Panelists *Gregg Bloche, Georgetown University Law Center Tracy Fessenden, Arizona State University Eduardo Peñalver, Cornell University Law School Robin West, Georgetown University Law Center Robin Fretwell Wilson, Washington Lee University School of Law *Please RSVP by September 19 to rs...@law.georgetown.edu * The conference is co-sponsored by the Georgetown University Law Center and the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. It is made possible through a grant from the Ford Foundation. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Mark: My point is that, as far as I know, for centuries *neither *case has been considered impermissible cooperation with evil under the mode of moral analysis you invoke (which I agree is respectable, indeed). Of course if the employer affirmatively *chose* to cover contraception, or had a legal choice whether to accept a plan with it or without it, and chose the former, that would be a form of *formal *cooperation with evil, which is proscribed (assuming, as I am here for sake of argument, that contraception is in fact evil from the employer's perspective). But absent such consent or choice, as here, the question is whether the material cooperation is sufficiently proximate -- and my understanding is that the proximity in these cases would be the same, and *not *sufficient to raise the prospect of impermissible cooperation. FWIW, Cathy Kaveny (copied here) offered a really fantastic summary of the Catholic doctrine on this at the beginning of our second panel: http://www.youtube.com/watch?v=1J4rCsq732c On Wed, Oct 3, 2012 at 11:15 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: And the point then, Marty, is that for centuries there has been a respectable mode of moral analysis in which the directness of involvement in an action is related to moral complicity. Buying an insurance policy that constitutes an agreement by the employer to subsidize a specific activity is a much more direct involvement than just paying wages that an employee may use in any way the employee chooses. ** ** Mark ** ** ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 7:49 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer’s money mediated by independent decisions of others. It’s the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 7:03 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe
HHS Rule: What is at Stake?
. I don’t have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that—apart from prisons—the weakest claims aren’t brought, or don’t find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn’t feel this way, but I do. And I bet judges do too. ** ** **2. **(I agree about the difficulties of *Gillette*.) One thing: “The claimant’s say-so of a religious burden.” A plaintiff’s subjective views of a burden are irrelevant—that’s Lyng and Bowen. But plaintiffs’ subjective views of their own religion are controlling—that’s Thomas, and Lee, and others. There’s a difference there, and the gap creates a real check. Yes, plaintiffs can “create” a burden by willing to plead whatever religious beliefs necessary to get them there, but I’m not convinced they would do that. And I think sincerity is a legitimate attack there. ** ** **3. **I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don’t think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether *they* should be required to provide contraception to their employees, with (2) whether contraception should be provided *at all* (whether by other employers or the government). The first is a religious liberty claim, where I am sympathetic to the Church; the second is a public policy claim, where I am not. That the Church has sometimes mixed the two together opens the door to a doubt about sincerity: Maybe the Catholic Church just doesn’t like contraception generally, and this is just another tactic to minimize its spread. But I think a plausible reading of the Church’s position is that while they dislike contraception across-the-board, there are special problems with them being forced to provide it. ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 11:17 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Chris: You and Marc raise absolutely valid points about doctrine during the Sherbert/Yoder era: The argument I'm suggesting (I'm not advocating it yet -- merely thinking it through) is in at least some tension with the sheet-metal/turrets portion of *Thomas*, and perhaps the burden discussion in *Lee* (I can't recall offhand what the Amish theory was about why the Social Security taxes violated their religion, but I assume it was something akin to the cooperation with evil theory being floated here; although as Chip suggests, it also involved some aspect of double-payment). So, simply in terms of what the right answer is or ought to be under RFRA, the government will obviously have to contend with those cases, either by suggesting (as someone here did) that perhaps RFRA did not incorporate their burden analysis wholesale (I'm dubious, but haven't thought it through), or that this case is distinguishable. But I'm not simply asking what the right answer is under RFRA. I'm trying to address at least three other questions raised by these claims: 1. Was Burger right on the turrets/sheet-metal point? Should the courts actually treat all religious *claims* of substantial burden uncritically, without even asking whether and to what extent the claimant's own conduct calls into question whether the burden is in fact substantial from the claimant's own religious perspective? If the courts do not differentiate at all between the plausibility and strength of such claims, and treat all alleged substantial burdens alike, is that a good thing for religious liberty? After all, it means that if the government were to voluntarily give exemptions, or be compelled by the FEC/RFRA to do so, it would have to cover a much, much wider class of claimants, with an accordingly much greater cost on the government interest side of the ledge . . . which as we all know means that many fewer exemptions will be afforded, in which case the claimant with the strong objection is harmed by being lumped in with the claimants with idiosyncratic or more attenuated objections. (As we all know, the courts have often avoided this problem by rejecting sincerity
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question *not * of whether your *volitional choice* was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral *even though you were well-intentioned*. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that *certain *action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the *choice* to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation of the norm against formal cooperation with evil. City B, however, has decided to treat cab drivers as common carriers -- they must accept all fares, no matter the destination. Our same cab driver, thinking that prostitution is unlawful, but now working in City B, abides by the law, picks up all fares without discrimination . . . and occasionally finds himself being asked to drop the passenger at a so-called house of ill-repute, a request that (like all others) he honors. In this case, he has performed exactly the same act as he did in City A, but this time, he has not violated religious tenets. Seems to be that in most material respects, the HHS Rule is more like my taxi driver in City B -- or the taxpayer in any jurisdiction -- than like your hypo of a Church that would gladly leave kids on the street in order to save a few bucks. On Wed, Oct 3, 2012 at 3:04 PM, Douglas Laycock dlayc...@virginia.eduwrote: It cannot be the answer that the coverage is mandated. Whether the coverage can be mandated is the question. The employer signs a contract, and pays for a contract, that covers these services. But for the regulation, he could sign and pay for a very similar contract that does not cover these services. ** ** Re saving money: I’m going to tweak the facts to isolate the issue of cost saving. I’m going to make the religious objection one that everyone would share. I understand that these hypothetical facts are extreme. The point is only to separate the issue of saving money from all the other issues.** ** ** ** Suppose the church runs an orphanage with 1000 children. It invites bids on a contract to feed the children for a year. It specifies the quantity and quality of food. It gets two bids. ** ** The first bid is $1.5 million. The second bid is $1.3 million. The second bidder specifies that after the contract is awarded, it will take the 100 oldest children, drive them to the nearest big city, and dump them on the street. There will be no need to feed them anymore. The church should not worry that it is paying for this immoral act, because it isn’t paying – it is actually paying less instead of more. But of course the church would think itself morally responsible if it signed that contract. ** ** From the church’s perspective, if contraception saves money, it will do so by preventing children from being born. Most of us think that contraception is good thing. But if you think it an evil thing, the fact that it saves money does not make it morally acceptable to contract for it, or to pay for a package that includes it. ** ** ** ** ** ** ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* b...@jmcenter.org [mailto:b...@jmcenter.org] *Sent:* Wednesday, October 03,
Re: HHS Rule: What is at Stake?
Sorry if I was unclear, Chris. I agree wholeheartedly that organizations that that don’t hire exclusively in the faith can have an important religious mission. And that mission might even include asking its employees -- of all faiths and no faith -- to act in certain ways while performing their jobs. But those organizations, unlike those who take advantage of the title VII exemption, do not typically assume that they can regulate what their employees do *outside* the workplace -- in particular, they cannot insist that their employees, particularly those of other faiths, comply with the employer's religious tenets. And so if the burden here is that it will be harder for the employer to establish an organization full of employees who abide by Catholic tenets w/r/t contraceptive use -- to establish the sort of constitutive community of which Deneen writes (if I'm understanding him correctly), then the HHS Rule is the least of it: Title VII and other laws already prevent the employer from insisting upon such religious uniformity among its employees. By contrast, if the employer is one that is legally entitled to insist upon such employee religious conformity outside the workplace, and exercises that right, then the HHS Rule will almost certainly not apply to that employer. On Wed, Oct 3, 2012 at 3:22 PM, Christopher Lund l...@wayne.edu wrote: Marty, ** ** If the Catholic Church’s view is really the same as Patrick Deenen’s—if the Catholic Church’s real objection is that HHS moves us to a Leviathan-like state and they have religious objections to that—then I agree its First Amendment claim fails. Then this really does become a case like *Lyng* or *Bowen*. The Catholic Church can object if they are coerced by the government in doing things against their religious will, but they have no First Amendment claim to control the government’s behavior. * *** ** ** A problem is going to be that there are a lot of people in the Catholic Church. Some will have a religious objection specifically to the government-imposed role for the Catholic Church, some will just have a religious objection to the whole act (maybe like Patrick Deenen), and some will have no religious objection at all. I guess everything depends on who the plaintiff is. And in the case of an organizational plaintiff, it depends on the people vested with authority for the organization. ** ** You seem to equate (1) religious organizations where “the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious norms” and (2) religious organizations “that qualif[y] for and exercis[e] the title VII exemption allowing preferences for co-religionists.” I think I agree that (1) makes sense in deciding on the breadth of any religious exception. My question is why (1) and (2) are the same. Why can’t there be organizations that have an important religious mission, but don’t hire exclusively in the faith? I think a lot of religious social-justice organizations work that way. And church schools. This was a big deal in *Hosanna-Tabor*. The fact that the church school hired non-Lutherans was evidence to the Sixth Circuit that the church school wasn’t serious about its religious mission. That seems to me (and it seemed to the Court) to be a mistake. ** ** Best, Chris ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 2:28 PM *To:* Law Religion issues for Law Academics *Subject:* HHS Rule: What is at Stake? ** ** Thanks, Chris. As to your discussion regarding what might be truly bothering at least some critics of the HHS within the Church, over at Mirror of Justice Rick G. links to this new post by one of our esteemed Conference participants, Patrick Deenen, whose views on this certainly differ considerably from mine (and from many of his co-panelists'): http://www.firstthings.com/onthesquare/2012/10/president-obamarsquos-campaign-for-leviathan. To Patrick's credit, at our conference he acknowledged during his panel's discussion (hope I'm characterizing this fairly--I need to review the video myself!) that the issue from the Church's perspective is not so much (or at least not principally) impermissible forced cooperation with evil, but something much more fundamental about the role of the state. His new essay gives a flavor of what he sees as one of the real concerns for at least certain of the objectors to the HHS Rule. Patrick writes that with the observation during the Democratic National Convention that 'government is the only thing we all belong to', and the actual underlying theme [of the Convention] that the State is needed to ensure our individuated liberty, the Obama administration thus implicitly and effectively endorsed the Hobbesian
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.eduwrote: Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. ** ** Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. ** ** Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. ** ** The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. ** ** 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, October 03, 2012 3:26 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question * not* of whether your *volitional choice* was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral *even though you were well-intentioned*. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that *certain *action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the *choice*to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Loud -- I agree. Clear? Not so much. Have they said that such institutions cannot comply? Indeed, I'm not even sure they've instructed such institutions that they must make the alternative payment to the government if they are not exempted. Again, I genuinely don't know -- perhaps the Bishops have said just that, in which case it would be very useful to be referred to whatever they've said. On Wed, Oct 3, 2012 at 4:59 PM, Douglas Laycock dlayc...@virginia.eduwrote: I did not mean to say that the bishops are saying that no Catholic employer can comply. I don’t know what they are saying about that. Quite possibly nothing. But they are saying loud and clear that the Catholic institutions for which they are responsible cannot comply, and they are saying that in the face of government coercion. They are obviously saying that government coercion does not justify them in complying. ** ** 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, October 03, 2012 4:57 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. 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, October 03, 2012 3:26 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *Sent:* Wednesday, October 03, 2012 10:22 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. 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] *Sent:* Tuesday, October 02, 2012 11:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Cathy Kaveny asked me to send along this reaction to some of the issues we've been discussing: Hi all, This is a fascinating discussion. I'm sorry I can't participate more because I have to get ready for a couple of talks. So I'll limit myself to three quick points. 1. Is the cooperation permissible according to Catholic teaching? This seems to me to be, at the very least, a question Catholics can publicly raise and discuss. In my view, the insurance issue is remote mediate material cooperation with evil--the sort of thing that is justifiable with proportionate reason. The type of arrangement has been signed off on by moral theologians many times before. Much closer cooperation with graver evils has been justified --for example, the manualists have said that it is permissible for a nurse to hand the instruments to a doctor whom she knows is performing an abortion. What's the difference here? I think the key issue isn't the cooperation itself, but the scandal--the current bishops discern a need to take a stand against the culture of death. 2. Some have argued that the cooperation with evil is formal--i.e., intentionally furthering the wrongdoing because it is under a contractual arrangement. You're buying the insurance policy, it has contraception in it. You're intending to buy contraception. In my view, that's a mistake. The cooperation is intentional, but the contribution to the evil is praeter intentionem--beside the intention of the person contracting for the policy. 3. The more vexing question for me is the relationship between the ad intra discussion and the legal analysis. On the one hand, I don't think it's a good idea for courts to go mucking around in religious traditions, turning themselves into theologians of various faiths. On the other hand, I am leery of reading the notion of substantial out of the jurisprudence, so that any burden is substantial if any religious believer claims it is. Take care, and special thanks to Marty for organizing such a wonderful conversation! Best, Cathleen On Wed, Oct 3, 2012 at 11:31 AM, Marty Lederman lederman.ma...@gmail.comwrote: Mark: My point is that, as far as I know, for centuries *neither *case has been considered impermissible cooperation with evil under the mode of moral analysis you invoke (which I agree is respectable, indeed). Of course if the employer affirmatively *chose* to cover contraception, or had a legal choice whether to accept a plan with it or without it, and chose the former, that would be a form of *formal *cooperation with evil, which is proscribed (assuming, as I am here for sake of argument, that contraception is in fact evil from the employer's perspective). But absent such consent or choice, as here, the question is whether the material cooperation is sufficiently proximate -- and my understanding is that the proximity in these cases would be the same, and *not *sufficient to raise the prospect of impermissible cooperation. FWIW, Cathy Kaveny (copied here) offered a really fantastic summary of the Catholic doctrine on this at the beginning of our second panel: http://www.youtube.com/watch?v=1J4rCsq732c ___ 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: RLUIPA and prisoner conjugal visits
I think we probably all agree that the RLIUPA claim here should and will fail, because of the compelling prison interest in not so selectively rendering such a universally desired accommodation. And for just that reason, I can't imagine any prison *voluntarily *allowing religiously motivated prisoners to have conjugal visits denied to all others. So what follows is an academic question, but one that could have implications in other contexts: Doug, do you really agree with Eugene that such a permissive accommodation might be *unconstitutional*, simply because it's something that many other persons desire for nonreligious reasons? Many permissive accommodations are not formally or substantively neutral in that sense, but I had thought that unless they (i) do not alleviate a significant state-imposed burden on religious exercise; (ii) impose a meaningful burden on other persons; or (iii) discriminate in the allocation of a constitutionally protected activity such as speech or assembly, they are constitutionally permissible. Since none of those three problems is evidently present here, I'd think a prison could, if it wished, accommodate the Muslim prisoner, no? On Sun, Nov 25, 2012 at 7:16 PM, Douglas Laycock dlayc...@virginia.eduwrote: This is a case where the religious claim aligns to closely with self interest. It would be neither formally nor substantively neutral to allow this claim, and it would give rise to many false claims of conversion and perhaps even some genuine conversions. On Sun, 25 Nov 2012 15:15:29 -0800 Volokh, Eugene vol...@law.ucla.edu wrote: In Pouncil v. Tilton, a prisoner is arguing that he is entitled to conjugal visits under RLUIPA, because he is a Muslim, that marriage is one of the most important institutions in Islam and is incumbent on every Muslim, and that the main duties of a Muslim to his or her spouse are to consummate their marriage to solidify the validity of the marriage and to have sexual relations as a form of worship. See http://www.ca9.uscourts.gov/datastore/opinions/2012/11/21/10-16881.pdf, which deals only with the statute of limitations issue in the case. But is it even constitutionally permissible for a prison to give conjugal visits only to people who feel a religious obligation (or motivation) to have sex with their spouses, and deny them to those who lack such a felt religious obligation? I would think that such a policy would create far more pressure to pretend religious belief than what was seen as unconstitutionally coercive in Lee v. Weisman, no? Eugene Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message 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: RLUIPA and prisoner conjugal visits
I suppose that's right, Chip. The question would then become whether there's some constitutional problem with discriminating w/r/t acces to such intimate association on the basis of religious belief, akin to the constitutional presumption against content-based speech regulations, which generally prohibits religious accommodations that consist of speech and assembly preferences. Cf. Heffron; Texas Monthly. On Mon, Nov 26, 2012 at 10:40 AM, Ira Lupu icl...@law.gwu.edu wrote: Re: Marty's post below -- wouldn't an RLUIPA-based right for some religiously motivated prisoners to obtain conjugal visits discriminate in the allocation of a constitutionally protected activity -- i.e., the right of intimate association? On Mon, Nov 26, 2012 at 6:41 AM, Marty Lederman lederman.ma...@gmail.comwrote: I think we probably all agree that the RLIUPA claim here should and will fail, because of the compelling prison interest in not so selectively rendering such a universally desired accommodation. And for just that reason, I can't imagine any prison *voluntarily *allowing religiously motivated prisoners to have conjugal visits denied to all others. So what follows is an academic question, but one that could have implications in other contexts: Doug, do you really agree with Eugene that such a permissive accommodation might be *unconstitutional*, simply because it's something that many other persons desire for nonreligious reasons? Many permissive accommodations are not formally or substantively neutral in that sense, but I had thought that unless they (i) do not alleviate a significant state-imposed burden on religious exercise; (ii) impose a meaningful burden on other persons; or (iii) discriminate in the allocation of a constitutionally protected activity such as speech or assembly, they are constitutionally permissible. Since none of those three problems is evidently present here, I'd think a prison could, if it wished, accommodate the Muslim prisoner, no? On Sun, Nov 25, 2012 at 7:16 PM, Douglas Laycock dlayc...@virginia.eduwrote: This is a case where the religious claim aligns to closely with self interest. It would be neither formally nor substantively neutral to allow this claim, and it would give rise to many false claims of conversion and perhaps even some genuine conversions. On Sun, 25 Nov 2012 15:15:29 -0800 Volokh, Eugene vol...@law.ucla.edu wrote: In Pouncil v. Tilton, a prisoner is arguing that he is entitled to conjugal visits under RLUIPA, because he is a Muslim, that marriage is one of the most important institutions in Islam and is incumbent on every Muslim, and that the main duties of a Muslim to his or her spouse are to consummate their marriage to solidify the validity of the marriage and to have sexual relations as a form of worship. See http://www.ca9.uscourts.gov/datastore/opinions/2012/11/21/10-16881.pdf, which deals only with the statute of limitations issue in the case. But is it even constitutionally permissible for a prison to give conjugal visits only to people who feel a religious obligation (or motivation) to have sex with their spouses, and deny them to those who lack such a felt religious obligation? I would think that such a policy would create far more pressure to pretend religious belief than what was seen as unconstitutionally coercive in Lee v. Weisman, no? Eugene Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http
Cert. grant today in ceremonial prayer case
This one, involving the assessment of denominational discrimination post-Marsh v. Chambers: http://www2.bloomberglaw.com/public/desktop/document/Galloway_v_Town_of_Greece_681_F3d_20_2d_Cir_2012_Court_Opinion ___ 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.
Marriage -- the Alito dissent
I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, on the other hand, apparently can do so: Legislatures, however, *have little choice but to decide between the two views*. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. I'd be curious what others think of this reasoning. For now, just some short, initial observations about Alito's view of the legislative function, before turning to his extraordinary footnote 7: First, Alito does not appear to distinguish at all between the meaning of marriage in religious and philosophical traditions, and the meaning of *state-conferred marriage licenses*. Windsor and Perry, of course, only involve the latter -- that is to say, they are merely about *state action*, and the meaning and effect of a* state-conferred status*, not the institution of marriage through the ages. Second, in light of how states in this nation actually implement that governmental function -- most obviously, by affording marital status to many heterosexual couples who cannot or will not procreate -- is it really fair to say that those states' marriage laws are designed to solemnize a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so? That is to say, haven't the states *chosen* the consent-based view of marriage . . . and, if so, shouldn't the exclusion of same-sex couples be considered on that basis? (As Alito acknowledges, the consent-based view now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. Wouldn't we therefore expect that state marriage laws reflect this overwhelmingly predominant popular view today?) Third, Alito does not appear to have considered whether the legislature, like the judiciary, is *not* *empowered *-- indeed, is arguably constitutionally* *forbidden* *-- to *solemnize* a comprehensive, exclusive, permanent union that is *intrinsically ordered* to producing new life, even if it does not always do so. I would have thought that solemnizing an intrinsic ordering is the proper function of the church, not the state. Now, onto footnote 7, which I will quote in full; it speaks for itself. I welcome your reactions, not only with respect to whether Judge Walker's factual findings were so far beyond the judicial ken, but, especially, as to Alito's view of the legal academy. (The particular amicus brief that he excoriates was filed by Bryan Adamson, Janet Alexander, Barbara Atwood, Barbara Babcock, Erwin Chemerinsky, Joshua Davis, David Faigman, Toni Massaro, Arthur Miller, David Oppenheimer, and Larry Yackle.): The degree to which this question is intractable to typical judicial processes of decisionmaking was highlighted by the trial in *Hollingsworth v. Perry,* *ante, *p. . In that case, the trial judge, after receiving testimony from some expert witnesses, purported to make “findings of fact” on such questions as why marriage came to be, *Perry v. Schwarzenegger,*704 F.Supp.2d 921, 958
Re: Marriage -- the Alito dissent
As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. *So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.* I'm not sure this is quite responsive to Alito, because I'm not sure Alito would disagree: As I read his dissent, his view is that *because *opposition to same-sex marriage, and to federal benefits for gay couples, is indeed emotional and sectarian, rather than rational (not quite how Alito would put it, of course, but basically his point), courts cannot assess it . . . but legislatures can and must do so. On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman lederman.ma...@gmail.comwrote: I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject the traditional view, thereby arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore. [FN7 -- on which more below] Because our constitutional order assigns the resolution of questions of this nature to the people, I would not presume to enshrine either vision of marriage in our constitutional jurisprudence. Legislatures, on the other hand, apparently can do so: Legislatures, however, *have little choice but to decide between the two views*. We have long made clear that neither the political branches of the Federal Government nor state governments are required to be neutral between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution. Accordingly, both Congress and the States are entitled to enact laws recognizing either of the two understandings of marriage. I'd be curious what others think of this reasoning. For now, just some short, initial observations about Alito's view of the legislative function, before turning to his extraordinary footnote 7: First, Alito does not appear to distinguish at all between the meaning of marriage in religious and philosophical traditions, and the meaning of *state-conferred marriage licenses*. Windsor and Perry, of course, only involve the latter -- that is to say, they are merely about *state action*, and the meaning and effect of a* state-conferred status*, not the institution of marriage through the ages. Second, in light of how states in this nation actually implement that governmental function -- most obviously, by affording marital status to many heterosexual couples who cannot or will not procreate -- is it really fair to say that those states' marriage laws are designed to solemnize a comprehensive, exclusive
Re: Marriage -- the Alito dissent
Fair enough, Richard -- I can't of course speak for Posner, but I shouldn't have suggested that Alito views opposition to same-sex marriage, and to federal benefits for gay couples, as necessarily emotional and sectarian. What I meant to refer to was the fact that Alito thinks this is a question that philosophers, historians, social scientists, theologians . . . and *legislatures *are capable of examining, but that is intractable to typical judicial processes of decisionmaking. (Of course, one of my initial points was that this is a non sequitur: Just because courts, *like* legislatures, cannot resolve the question of what the true or intrinsic nature of marriage is, does not mean that they cannot assess what legislatures have in fact done (and why) *on behalf of the state *in terms of defining marriage, something that is common fodder for the judicial processes of decisionmaking.) On Sat, Jun 29, 2013 at 12:10 PM, Richard Dougherty dou...@udallas.eduwrote: Well, I don't know what Alito may say about Posner's characterization, but I'm guessing he would not embrace the view he forwarded as emotional and sectarian, rather than rational. Indeed, I'm finding it hard to imagine that anyone would characterize their own view that way. (Well, maybe Westboro Baptist, but Alito is not of that persuasion, I would imagine.) While it may be true that the view he suggests is close to the Vatican's view (which Posner derisively calls its sex doctrine), it is also the dominant view of marriage over the past thousands of years. There's nothing necessarily sectarian about it, and it's certainly not non-rational. It might not be persuasive to all, or to many, but it would be an injustice to dismiss it so cavalierly. Richard Dougherty On Sat, Jun 29, 2013 at 10:19 AM, Marty Lederman lederman.ma...@gmail.com wrote: As a couple of you have pointed out to me, Judge Posner has addressed the Alito dissent; in Slate ( http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2013/supreme_court_2013/supreme_court_and_doma_justice_alito_s_defense_is_all_emotion.html), he writes: Alito is drawn to such arguments for DOMA as “the institution of marriage was created for the purpose of channeling heterosexual intercourse into a structure that supports child rearing,” and “marriage is essentially the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” The first argument would have force only if one supposed (as virtually no one does any longer) that banning same-sex marriage would channel gays into straight marriages. The bearing of the second argument (a close paraphrase of official Vatican sex doctrine) eludes me. A sperm bank is intrinsically ordered to producing new life, even if it does not always do so. So what? A marriage of a man to a woman known to be sterile could not be thought intrinsically ordered to producing new life, yet it would surely be recognized by Alito as a valid marriage entitled to federal marital benefits. *So far as yet appears, opposition to same-sex marriage, and to federal benefits for gay couples, is emotional and sectarian, rather than rational.* I'm not sure this is quite responsive to Alito, because I'm not sure Alito would disagree: As I read his dissent, his view is that *because *opposition to same-sex marriage, and to federal benefits for gay couples, is indeed emotional and sectarian, rather than rational (not quite how Alito would put it, of course, but basically his point), courts cannot assess it . . . but legislatures can and must do so. On Sat, Jun 29, 2013 at 10:55 AM, Marty Lederman lederman.ma...@gmail.com wrote: I'm surprised there hasn't been more attention paid to the quite remarkable dissent that Justice Alito filed in Windsor. In it, he contrasts two competing views of marriage: what he calls the conjugal view, in which marriage is the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so (citing Robby George); and the “consent-based” concept of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment—marked by strong emotional attachment and sexual attraction—between two persons. As Alito notes, At least as it applies to heterosexual couples, this [consent-based] view of marriage now plays a very prominent role in the popular understanding of the institution. Indeed, our popular culture is infused with this understanding of marriage. [Just as an aside: What is the purpose and implication of his adding At least as it applies to heterosexual couples?] Altio's view is that the judiciary can't possibly give preference to one or the other of these two views: Windsor and the United States implicitly ask us to endorse the consent-based view of marriage and to reject
Citations to Listserv posts/Contraception mandate
Doug Laycock has just posted this very interesting article to SSRN on Religious Liberty and the Culture Wars that I recommend (though I would certainly take issue with parts of it): http://papers.ssrn.com/abstract=2304427 Doug's piece prompted me to wonder about a non-substantive point, however, about which I thought an interjection might be in order: I was a bit surprised to see, in note 155 of his essay, that Doug cites a couple of CONLAWPROF listserv posts of mine as evidence of a particular argument about religious burdens that some have suggested--an argument that Doug quite forthrightly condemns. FWIW, I don't think Doug has conveyed the true nature of the argument I was making -- it was a limited argument specifically in response to one of his -- but that's ok, because anyone who cares at all about what I think (or thought one day last February) will go to the posts themselves to see the context and the specific claims. And, to his credit, Doug quite appropriately notes that in the second of the two posts, I specifically disclaimed the argument that he uses the first of my posts to illustrate. But I wanted to raise a broader question. Doug also cites to posts by Marci Hamilton, and Jonathan Mallamud, from the same thread. All of these cites raise a caution and a question. (The posts in question were on CONLAWPROF, but the point is the same w/r/t ReligionLaw.) The caution: You should all be aware, if you aren't already, that all that we post here is available online for all the world to see . . . 'til the end of time! That hasn't really deterred me at all from posting my views, even when they are tentative and somewhat provocative or controversial -- and I hope the same is true for the rest of you, too. (I just did a very quick Westlaw search for lists.ucla.edu, and found twelve cites to posts on these two listservs, some of them laudatory (or giving the author credit for the first articulation of a point): One post each to Tom Berg, Josh Chafetz, Doug himself, Chris Lund, Chip Lupu, and Eugene Volokh; two cites to Mark Tushnet; and four cites to yours truly (what does this say about me?!) For all I know, some or all of the authors checked with the cited writers before citing -- I don't recall in my own cases.) The question: What is the etiquette, as it were, of citing listserv posts and thereby attributing views to one another? My tentative view is that it's ok -- after all, non-listserv members can and will do so, and I trust all of you to try your best to fairly characterize what I and others have said, in good faith. But I have a lingering concern that such a practice will deter candid engagement on the listservs. I'm not sure that's entirely a bad thing, even if it is occurring -- my general view is that one should always assume that what we write will appear on the front page of the New York Times, because that makes for more careful, more thoughtful writing. But of course the listservs serve as a kind of real-time conversation, too; and it would be a shame if people became reluctant to engage in a back-and-forth for fear that their posts will later be cited. I sent these thoughts to Doug, who asked me to share with you that he considered the question, and cited the posts because: I thought that 1) these posts are archived on a publicly available website, 2) we had talked about that fact on the list from time to time, 3) the contraceptive mandate was relatively new and some of these arguments had not made it into published articles yet (at least that I knew about), and 4) I was talking about a broad shift in attitudes and these less formal writings tended to reveal what people really felt. What do others think? Should the informal, unpoliced norm be that we won't cite one another's posts without at least giving the author a head's up . . . or perhaps, even, allowing the author a veto? Would it depend on how the cite is being used? What I'm most interested in is whether any of you would be chilled *in an unfortunate way* from posting now that you know you might be cited. (As noted above, I think some chilling is a good thing, insofar as it prompts more thoughtful writing.) Thanks in advance, Marty ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception mandate
OK, here's an effort to get us back on the track (of the current circuit split): What Doug wrote was that there was a common understanding that RLPA would protect for-profit *businesses* from civil rights claims *that **substantially burdened the owner’s free exercise of religion*. Now, it's not clear how this bears on whether and when *RFRA *protects for-profit corporations, since RFRA was enacted before RLPA was considered . . . but even if there were some basis for treating the two as coterminous . . . and even if RLPA would have protected the exercise of religion of the *owner *of a for-profit *business *(Doug points to landlords), that would not begin to answer the questions -- at issue in *Hobby Lobby *and *Conestoga *-- of whether a for-profit *corporation* exercises religion; whether such a corporation has any religious duties that might be violated if the corporation complies with the ACA; and, if so, whether the HHS reg would substantially burden the religious exercise of the for-profit corporation itself. On Thu, Aug 1, 2013 at 10:01 PM, David Cruz dc...@law.usc.edu wrote: I know I'm not the listmod, but could we please keep the posts on topic for the listserv? David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Aug 1, 2013, at 6:32 PM, Volokh, Eugene vol...@law.ucla.edu wrote: No, Marci. You personalized this. ** ** *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com *Sent:* Thursday, August 01, 2013 5:20 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Contraception mandate ** ** I was not particularly interested in solely Doug's statements at the time, but rather his reasoning in his new piece. Marc and now Eugene have personalized this. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Contraception mandate - Lee
Chip and I are not that far apart. I agree that both Braunfeld and Lee asserted that regulation of their business affairs burdened their own, personal religious liberty. The Greens make the same claim in Hobby Lobby. And thus they would surely have standing to sue on their own behalf . . . if they had not incorporated. As I said, there are doctrines in corporate law, discussing in some of the Hobby Lobby and Conestoga briefs and opinions, that limit the sorts of personal claims that can be brought by the owners of corporations for injuries alleged to themselves by virtue of legal regulation of the corporations. I don't know enough about that law to say whether it precludes the Greens's claim. Whether *Hobby Lobby* has its own religious liberty claim is a very different question. The claim here involves an allegation of being forced to violate a religious obligation, which I don't quite understand in the context of a for-profit corporation, which presumably does not have any religious duties. Bob Jones University raised a very different sort of claim, if I recall correctly. On Mon, Aug 5, 2013 at 10:25 PM, Ira Lupu icl...@law.gwu.edu wrote: Braunfeld and Lee were men engaged in business, and both were asserting that regulation of their business affairs (Sunday Closing law in Braunfeld; FICA contributions in Lee) burdened their religious exercise. Those are business claims of free exercise infringement. I don't see any way around that characterization. Neither case seems to have involved the corporate form, however, and I agree that the contraceptive mandate cases present that novel issue. But neither the legislative history nor the pre-RFRA law will resolve it; whether corporate identity precludes a religious liberty claim is a question of first impression. But we all can see that corporate identity did not preclude the claim in Bob Jones University v. U.S., and I don't understand the logic of allowing universities to make religious liberty claims but not business corporations. On the merits, I think the interests of female employees may be getting short changed in this discussion. Cutter says that RLUIPA should be construed, in light of the Establishment Clause, to avoid shifting substantial costs to third parties (see TWA v. Hardison; Caldor), and that principle of construction must apply with equal force to RFRA. If Hobby Lobby (and others like it) are exempt from the mandate, the firm's female employees will be made worse off; they will have to pay for their own pregnancy prevention services. (Yes, I know the scheme is under-inclusive, but that does not make the cost-shifting problem go away with respect to those who are covered). Of course, the question is who should pay for these services -- the employer, the employees, or the government. Anyone who thinks RFRA dictates a straightforward answer to that problem is just seeing in RFRA what he or she hopes to see. On Mon, Aug 5, 2013 at 9:53 PM, Marty Lederman lederman.ma...@gmail.comwrote: Perhaps it's a minor point, and I'm very reluctant ever to disagree with Chip!, but neither Braunfeld nor Lee involved free exercise claims by businesses, let alone corporations. The free exercise claims in each case were brought by and on behalf of the individuals who owned the businesses, alleging burdens on their own religious exercise (and, I believe, the exercise of the employees in Lee, as well, if memory serves). No one disputes that in Hobby Lobby and other like cases, the individual owners have alleged burdens on their own religious exercise. But there are serious questions whether those burdens are ameliorated to a material degree by their choice to incorporate (thus shifting all liabilities and duties to the corporation); and, as I understand it, another serious question whether, as a matter of corporations law, the owners have abandoned their right to assert personal religious liberty claims by incorporating (bitter with the sweet, etc.). In any event, even if the right answer is that the Greens' own RFRA claims are viable, that does not begin to answer the question whether the for-profit corporation itself can sue for an alleged burden on *its *religious exercise. FWIW, I find it very difficult to understand how a for-profit corporation can assert the sort of claim at issue in these cases, namely, that compliance with the law would force them to violate a religious obligation. For-profit corporations, as such, don't have any religious obligations, far as I know. On Mon, Aug 5, 2013 at 8:57 PM, Ira Lupu icl...@law.gwu.edu wrote: RFRA is designed to codify the pre-Smith free exercise law. That law includes Braunfeld and Lee, both of which involve free exercise claims by for-profit businesses. Neither opinion even hints at the idea that such enterprises cannot raise claims under the free exercise clause. That is far more persuasive on the point than any undisclosed
Re: Closely-held corporations, owners of corporations, and RFRAs
Actually, in order to make the hypothetical analogous to these cases . . . well, it really can't be made analogous, because providing a health insurance plan that covers all recognized medical treatments without exception can't be analogized to choosing to use slave labor in any serious moral universe. But even putting that aside . . . . . . one would have to posit a closely held corporation that for many years refuses to use slave labor . . . until the federal government requires *all* large employers to use slave labor, at which point no one would consider the owners of that corporation to be morally responsible, especially after the owners inveigh against the moral evil of the new law -- reasonable observers would properly direct their opprobrium to the government itself. Let me be clear: I'm not saying the owners of these corporations do, or do not, have standing to bring RFRA claims based on legal obligations imposed on the corporations. I haven't done enough research to have a view on the question. In fact, the only research I've done at all is to read the various opinions on the question in the courts of appeals cases, which I recommend to you all. (See, e.g, the Matheson and Bacharach opinions in Hobby Lobby.) But there was a reason the majority in Hobby Lobby chose not to reach the question of the Greens' standing -- presumably because it raises difficult and thorny questions under corporations law. Instead, the majority held that the corporation itself had standing based on an alleged burden on its own religious exercise -- and it's that holding that I find implausible. On Tue, Aug 6, 2013 at 9:26 AM, Douglas Laycock dlayc...@virginia.eduwrote: For folks having trouble with Eugene’s hypothetical, think about an activity that most secularists would also think is seriously wrong. Suppose I form a wholly owned corporation, and my corporation uses slave labor for hazardous work, with many deaths and injuries among the workers, in some developing country. When I’m exposed in the press and subjected to intense public criticism, I just say: “It’s not me. It’s a corporation.” ** ** I don’t think my critics would be the least bit mollified. They would still view me as morally responsible, as well they should. ** ** 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 *Volokh, Eugene *Sent:* Tuesday, August 06, 2013 12:40 AM *To:* Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) *Subject:* Closely-held corporations, owners of corporations, and RFRAs*** * ** ** Why would doctrines of corporate law bar a closely held corporation’s owners from asserting that a regulation of the corporation substantially burden their religions? I would think that federal courts’ application of corporate law is as subject to RFRA as its application of other laws. ** ** Let’s take a simple example: Say that a state has a RFRA, but also has a law requiring all gas stations to be open seven days a week. John Smith and his brother Peter Smith co-own a gas station, through a closely held corporation (Smithcorp). They have a religious objection to having any business they own operating on their Sabbath (say, Saturday), and they sincerely believe that this also applies to businesses that they own through a corporation. (Lots of people, of course, sincerely believe that if it’s wrong for them to do something, it would be wrong for them to do it through the corporate form. Indeed, I think we’d look askance at someone who says, for instance, “Yes, I think it’s wrong for me to sell meat products, or for me to let meat products be sold on my property, but it’s just fine for meat products to be sold on the property of a corporation of which I am a sole owner”; the corporate form is a useful legal concept that may have great legal effects, but few people see it as morally significant in distancing a person from what his business does.)** ** ** ** I would think that the state law substantially burdens the Smiths’ religious exercise. It puts them to the choice of (1) doing something that they believe is religiously forbidden (have a corporation that they own operate on a Saturday) or (2) giving up the corporate form, a device of very substantial value to a business (cf. Sherbert v. Verner). Perhaps the state can overcome the RFRA claim under strict scrutiny, but I don’t see how the business’s being a corporation weakens the Smiths’ RFRA claim. ** ** Now of course if the Smiths did *not *sincerely believe that it was religiously wrong for them to have their corporate-owned gas station to be open Saturdays (maybe they
Re: Rights of corporations and RFRAs
Not yet determined. Almost certainly on the March argument calendar. On Wed, Nov 27, 2013 at 9:06 AM, Marc Stern ste...@ajc.org wrote: Does anyone know who is going to brief first(upside),and who is going to brief second (downside in the contraception cases? Or is each case going to brief on the normal schedule? The docket sheet said nothing late yesterday on this subject. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 27, 2013 12:35 AM To: Law Religion issues for Law Academics Subject: RE: Rights of corporations and RFRAs I think that's right, partly because the burden on stockholders of selling shares in a publicly traded corporation is much less than the burden of selling shares in a closely held corporation. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Tuesday, November 26, 2013 3:50 PM To: Law Religion issues for Law Academics Subject: RE: Rights of corporations and RFRAs I think there is considerable force to Eugene's argument about closely held corporations (although I'm not sure if the size of the enterprise needs to be taken into account too -- I'm still thinking about that.) Do I take it from your argument that you believe a publicly traded corporation would not be a useful stand-n for people? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 3:31 PM To: Law Religion issues for Law Academics Subject: Rights of corporations and RFRAs I've long thought that corporate rights make sense only to the extent that they are useful for stand-ins for the rights of people. (I support Citizens United precisely because of that.) And when it comes to closely held corporations, whose owners claim an objection to participating in some activity, including by paying for it or allowing it on their property, there are indeed rights of people involved. A simple hypothetical: A law requires that all retail stores sell lottery tickets. A store is owned by a corporation, which is in turn owned by (say) two brothers; they believe that gambling is a sin, and that facilitating gambling is a sin. (In that respect they are like Thomas in Thomas v. Review Bd., who believed not only that he shouldn't go to war, but also that he shouldn't help in warmaking.) The requirement, it seems to me, burdens their religious practice, even though they own their business through a corporate form. The corporate form is indeed a legal fiction, which is why I think corporate rights should only be recognized a stand-ins for the rights of people. But for the same reason burdens on people's religious practice shouldn't be ignored by the law by invoking the fiction that the gas station isn't really owned by the brothers but is instead owned by the corporation. The only question, I think, should be whether the brothers would have to sue under the relevant state RFRA in their own names, pointing to the burden that the lottery sales mandate imposes on them, or whether they could have the lawsuit be filed in the name of the corporation. But the bottom-line result should be that the owners of the closely held corporation could indeed assert a RFRA claim, whichever way it's done. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law *before *the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision- contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see *In re Union Pacific R. Employment Practices Lit.*, 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.netwrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business
Re: Letter of 16 law professors in support of removing substantial as modifier of burden in state RFRAs
I assume this is the letter, although it does not specifically address the removal of substantial: http://txvalues.org/wp-content/uploads/2013/04/Professor-Support-Texas-Religious-Freedom-Amedment-Senate-version.pdf On Sun, Dec 1, 2013 at 9:03 AM, hamilto...@aol.com wrote: When a new TRFRA was introduced in Texas earlier this year, I was told that there was a letter submitted signed by approximately 16 law professors who supported the removal of substantial from the typical RFRA analysis. Doug had said on this list that he would send it to me several months ago, but I have never received it. I assume several on this list signed it. Could someone please forward it to me? It is, essentially, a public document, having been distributed to Texas legislators. KY actually did pass such a law so I assume this is a new trend. I am hearing from many civil rights groups who are deeply concerned about such a law, and I would like to explain to them the reasoning behing making a de minimis burden the trigger for strict scrutiny. Thanks-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton ___ 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.
Does substantial matter?
Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term burden is modified by substantial will not matter, because such courts inevitably end up balancing the degree (or nature) of the burden on religious exercise -- indeed, the degree of religious significance -- against the strength of the government's interest in denying an exemption. From where we stand today, however, that's a somewhat odd argument to make, for two reasons. The first is that the terms of RFRA (and most state analogues) don't ask courts to do any such balancing: Instead, the court is asked in the first instance to assess whether there is a substantial burden -- on the face of it, what appears to be a binary, yes or no question -- and then (in theory) is not supposed to further assess the importance/substantiality/centrality/degree/etc. of that burden when moving on to the second step, which merely asks whether the government interest is compelling and can otherwise be advanced, even with a religious exemption. The second reason that we can't so easily dismiss substantial is, of course, that the Supreme Court has just granted cert. in a landmark case that will likely turn on precisely what the word substantial means. (At the very least, that question will get a thorough workout in the briefing and argument.) Many of those who are supporting Hobby Lobby will presumably argue that the adjective substantial refers only to the degree of coercion resulting from the government action (criminal sanctions being most coercive and thus creating the most substantial burden; denial of unemployment benefits also substantial (cf. Sherbert); denial of highly discretionary, rarely awarded benefits much less substantial, etc.). The government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiff. My understanding from Doug's previous writings is that he agrees that some such assessment of religious significance (a continuous variable in Doug's terms -- not an on/off switch) is necessary, or at least inevitable (as his post here suggests). For example, he wrote this in a 2009 piece in Rutgers J. L Rel.: The text of the Constitution applies to all forms of religious practice, central or peripheral. Still, *the argument against oppression is strongest with respect to the most important religious practices, and weaker with respect to marginal practices that believers might be willing to give up.*But the importance of religious practices varies from person to person, and is difficult for courts to assess. The Court is right that it would be a mistake to hold that practices central to a religion are constitutionally protected and that practices below some threshold of centrality are not constitutionally protected. A far better rule is that all exercise of religion is constitutionally protected, but that *less weighty government interests can justify burdens on less weighty religious practices*. A threshold requirement of centrality would be an all-or-nothing rule; it would treat a continuous variable--religious significance--as though it were a dichotomous variable, and it would thereby greatly magnify the consequences of the inevitable errors in assessing religious significance. Such a threshold requirement would wholly deny protection, instead of according somewhat less protection, when religious significance is somewhat underestimated. But *the impossibility of fairly administering a threshold requirement of centrality does not mean that the courts should wholly ignore the importance of the religious practice when they are asked to decide a claim to exemption*. The compelling interest test is best understood as a balancing test with the thumb on the scale in favor of protecting constitutional rights. The best way to formulate the question is whether the government interest compellingly outweighs the religious interest. *The compelling interest test is not often formulated that way, but I think that it must operate that way in practice, and sometimes in the course of applying the test, the Court seems to say as much*. To borrow and correct Justice Scalia's example, it is easier for the government to justify a ban on throwing rice at weddings than to justify a ban on getting married in church. On Mon, Dec 2, 2013 at 12:28 PM, Douglas Laycock dlayc...@virginia.eduwrote: Apologies to anyone getting this twice; I think it bounced the first time. What I said is in the second letter (link below) and summarized in the e-mail to which Marci responded. We supported the bill as drafted, without “substantial;” I also suggested that the committee restore “substantial” if it were bothered by the omission. I think most of my co-signers would have agreed with that suggestion, but I don’t know that, because they were not asked to sign the second letter. I said it didn’t matter much because the
Re: RFRA, the Establishment Clause, and saving constructions
Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations *that imposed significant burdens on third parties*, that would raise a serious constitutional question. Eugene, you're right that *expanding* RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, *and *in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which definition is no less appropriate here.); Wondzell v. Alaska Wood Prods., Inc., 583 P.2d 860, 866 n.12 (Alaska 1978) (In order to avoid the danger of unconstitutionality we would interpret [the state statute] to accord the same privileges to all sincere conscientious beliefs, whether or not they are accompanied by a belief in a supreme being.); Kolodziej v. Smith, 682 N.E.2d 604, 607 (Mass. 1997). Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way, but is instead compelled to read it in a way that makes it unconstitutional? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Tuesday, December 03, 2013 8:14 AM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: RFRA, the Establishment Clause, and saving constructions Chip has cut to the chase (thank you) i would add that Eugene's reasoning further underscores how RFRA is in fact a non-ratified amendment to the First Amendment, as the Court pointed out in a footnote in Boerne. Advocates for it like Eugene cannot build in all the rules they like by borrowing from Supreme Court First Amendment doctrine but then say it is just a statute.As a statute, the plain language rule, the very title and the use of free exercise and the reference to religious cases means, yes, legislators are constrained to apply it only to religious believers. If its application to only the religious makes it a violation of the Establishment Clause, we have a constitutional violation. Marci A. Hamilton Verkuil Chair in
Re: Burdens on others -- compelling interest vs. Establishment Clause
Which HHS accommodation? The first -- exempting churches altogether -- in theory does not impose as much of a burden on their employees, because those entities already have a right (under title VII) to prefer coreligionists and insist that they comply with religious obligations -- that is to say, the employees there voluntarily took the jobs knowing (probably intending) that they would have to abide by church tenets. The second HHS accommodation, for other religious nonprofits, does not harm the female employees, because they continue to receive cost-free contraceptive coverage, albeit from the insurer rather than from the employer. On Tue, Dec 3, 2013 at 6:30 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I sympathize with the argument that there is a compelling government interest in preventing costs on third parties, and that this may justify rejecting the RFRA claim. I think the doctrine here is especially uncertain, but there’s much to be said for that argument as a reason for rejecting Hobby Lobby’s claim. But the Establishment Clause argument would go further. Among other things, it would mean that the Administration’s accommodation for religious nonprofits is itself unconstitutional. (As I read Gedicks Van Tassell, that is indeed their position.) Do list members who embrace the Establishment Clause argument agree with that result? Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Tuesday, December 03, 2013 8:40 AM *To:* Law Religion issues for Law Academics *Subject:* Re: RFRA, the Establishment Clause, and saving constructions Eugene writes: Even in the face of this caselaw, and the argument that such preference for religion makes the statute unconstitutional, the Court can’t read RFRA the same way [as courts have read the title VII and conscientious objector statutes], but is instead compelled to read it in a way that makes it unconstitutional? No, the argument is not that the preference for religion makes it unconstitutional -- Cutter already rejected that argument -- but that if RFRA were construed to allow religious accommodations *that imposed significant burdens on third parties*, that would raise a serious constitutional question. Eugene, you're right that *expanding* RFRA to include nonreligious objections would eliminate that particular constitutional concern -- ironically, by expanding the harm to third parties. But for the reasons Chip has offered -- plus the glaring point that the one thing everyone agrees on is that RFRA was intended to codify the FEC doctrine of the Sherbert-through-Hernandez quarter-century, a doctrine that did not recognize nonreligious claims for exemption -- that reading of RFRA is fairly untenable (in contrast to the conscientious objector and title VII accommodations) . . . and would, indeed, only exacerbate the employee-burden problems. The much, much more natural way to avoid the third-party burden constitutional concerns is simply to construe RFRA to provide that avoiding significant third-party harms is a compelling government interest, under the terms of RFRA itself. Indeed, doubly compelling -- the government has an interest both on the merits in not denying this particular category of women a social benefit to which virtually all other women are entitled, *and *in avoiding serious EC concerns. On Tue, Dec 3, 2013 at 11:22 AM, Volokh, Eugene vol...@law.ucla.edu wrote: So I take it the EEOC and the great majority of courts that have considered the meaning of “religion” in Title VII are wrong, too? Here are the citations I had when I last researched the matter in 1999: Protos v. Volkswagen of Am., Inc., 797 F.2d 129, 137 n.4 (3d Cir. 1986) (The breadth of the 'exemption' afforded by Title VII is underscored by the fact that in defining religion, the EEOC has used the same broad definition as the Selective Service employs for conscientious objector purposes.); Nottelson v. Smith Steel Workers, 643 F.2d 445, 454 n.12 (7th Cir. 1981) (noting the same broad definition); Redmond v. GAF Corp., 574 F.2d 897, 901 n.12 (7th Cir. 1978) (We believe the proper test to be applied to the determination of what is 'religious' under § 2000e(j) can be derived from the Supreme Court decisions in [Welsh] and [United States v. Seeger, 380 U.S. 163 (1969)], i.e., (1) is the 'belief' for which protection is sought 'religious' in person's own scheme of things, and (2) is it 'sincerely held.'); Ali v. Southeast Neighborhood House, 519 F. Supp. 489, 490 (D.D.C. 1981) (Sincere beliefs, meaningful to the believer, need not be confined in either source or content to traditional or parochial concepts of religion. [Welsh.] See also [Seeger] for the definition of 'religious training and belief' as applied to a conscientious objector claim, which
Re: Does substantial matter?
Chris: The question is not how central the religious exercise is to the plaintiff's system of religion -- an assessment that I would never encourage civic officials to assess and that the text of the statute in any event precludes -- but how *important *it is to the plaintiff, which can be viewed as a component of how substantial a burden the law places on the religious exercise. To take one obvious example: Conduct that is compelled by religious doctrine and conduct that is only modestly encouraged by religious tradition (throwing rice at the wedding) might both be part of religious exercise; but obviously a legal restriction on the former will impose a more substantial burden on that exercise than a restriction on the latter -- it'll bite more. These cases raise a different variation on that question . . . . On Wed, Dec 4, 2013 at 1:37 PM, Christopher Lund l...@wayne.edu wrote: I’m sorry to be late in returning to this thread. I appreciate Professor Masinter’s example, his posts and the others. It seems like Marty and Doug have helpfully given us a couple of ways of going forward. (1) Centrality could be a threshold requirement. (2) Centrality could be integrated into determinations of burden, compelling interest, least restrictive means, etc. And with much less experience, I share Doug’s sense that this happens inevitably, without any need for centrality as a formal requirement. Judges are most sympathetic to practices of deep religious significance, and this is not a failing on their part. And when we move from courts to legislatures, legislatures openly and un-self-consciously give more protection to central practices. It seems to me that the whole for-profit issue arises because of problems with both of these approaches. We don’t like centrality as a threshold requirement, because it is ugly for courts to administer and it means absolutely no protection for practices a court deems non-central, no matter how weak the governmental interest. And we don’t like centrality integrated into other parts of the test, because it doesn’t really fit. For-profit status makes sense as a kind of proxy for centrality. I’m not persuaded there’s something mysterious about for-profits that makes them categorically unable to practice religion. (And if you look at Tyndale House, for example, I think that point becomes kind of obvious.) But I am persuaded that most for-profits don’t exercise religion, and that it’s generally not as important to their mission. One final wrinkle. Doug and Marty know this, but we have to keep in mind that this centrality argument—Marty below says that “the government and its amici will no doubt argue, by contrast, that the court must also assess the degree of importance of the religious exercise to the plaintiff”—however sensible it is, runs into the text of RFRA. *See *42 USC § 2000cc–5(7)(A) (“The term ‘religious exercise’ includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”) Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Tuesday, December 03, 2013 8:45 AM *To:* Law Religion issues for Law Academics *Subject:* Does substantial matter? Doug may well be right that for most lower courts (but not all -- see Michael Masinter's post), whether the term burden is modified by substantial will not matter, because such courts inevitably end up balancing the degree (or nature) of the burden on religious exercise -- indeed, the degree of religious significance -- against the strength of the government's interest in denying an exemption. From where we stand today, however, that's a somewhat odd argument to make, for two reasons. The first is that the terms of RFRA (and most state analogues) don't ask courts to do any such balancing: Instead, the court is asked in the first instance to assess whether there is a substantial burden -- on the face of it, what appears to be a binary, yes or no question -- and then (in theory) is not supposed to further assess the importance/substantiality/centrality/degree/etc. of that burden when moving on to the second step, which merely asks whether the government interest is compelling and can otherwise be advanced, even with a religious exemption. The second reason that we can't so easily dismiss substantial is, of course, that the Supreme Court has just granted cert. in a landmark case that will likely turn on precisely what the word substantial means. (At the very
Hobby Lobby/Conestoga Wood scheduling
The Court did not realign any of the parties (somewhat to my surprise), but consolidated amici briefing. Therefore: -- SG brief in HL, and CW brief in CW, are due Friday, Jan. 10 *-- All amici, supporting any side, due Tuesday, Jan. 28* [shades of green on color of briefs TBD, perhaps sometime today] -- SG brief in CW, and HL brief in HL, due Monday, Feb. 10 -- SG reply in HL, and CW reply in CW, due Wednesday, March 12 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby/Conestoga Wood scheduling
Official word from the Court: All briefs for an amicus curiae must be filed on or before Tuesday, January 28, 2014. An amicus curiae brief in support of the Government or in support of neither party shall bear a light green cover, and an amicus curiae brief in support of a non-Government party shall bear a dark green cover. An amicus curiae may file only a single brief in case Nos. 13-354 and 13-356. On Fri, Dec 6, 2013 at 2:02 PM, Marty Lederman lederman.ma...@gmail.comwrote: The Court did not realign any of the parties (somewhat to my surprise), but consolidated amici briefing. Therefore: -- SG brief in HL, and CW brief in CW, are due Friday, Jan. 10 *-- All amici, supporting any side, due Tuesday, Jan. 28* [shades of green on color of briefs TBD, perhaps sometime today] -- SG brief in CW, and HL brief in HL, due Monday, Feb. 10 -- SG reply in HL, and CW reply in CW, due Wednesday, March 12 ___ 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.
Hobby Lobby posts
Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hobby Lobby posts
issues for Law Academics *Subject:* RE: Hobby Lobby posts I also thought that Marty’s argument that there is actually no employer mandate for RFRA purposes was extremely thoughtful and interesting. I thought about this analogy while considering his analysis. Suppose the federal government decides to return to a system of conscription that includes non-military, national service. All draftees are told up front that they can either serve in the military or in a wide variety of alternative service jobs. There is no specific conscientious objector exemption provided by the conscription statute. Would a religious pacifist have a claim under RFRA? As long as there were alternative service jobs available that did not violate the draftees religious beliefs, and the alternative jobs were not more demanding and dangerous than military service, I take it Marty’s analysis would suggest that no viable RFRA claim would exist. A draftee might argue that serving the government in any capacity under a national service plan would violate his religious beliefs, but I think that position was never accepted in conscientious objector cases and presumably it would not be accepted for this new system of national service. Of course, as Marty recognizes, there may be questions as to the costs employers actually incur if they choose to pay the tax alternative (e.g. the employer being placed at a competitive disadvantage) just as in my analogy there may be questions about the burdens imposed on individuals choosing non-military service. But those questions do not undercut the foundation of his argument. Alan Brownstein *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene *Sent:* Monday, December 16, 2013 12:03 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Hobby Lobby posts I much appreciate Marty’s kind words about my posts, and I’m very interested in his posts. The argument that there’s actually no employer mandate for RFRA purposes (the Part III post) strikes me as especially interesting, though I’m somewhat skeptical about it. Marty, could you post an excerpt of that post on this list? I’d love to hear what others have to say about it. Thanks, Eugene *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Monday, December 16, 2013 10:53 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby posts Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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: Are large employers really better off dropping health insurance?
I apologize for not responding right away, but I'm slammed with other stuff. There is a lot to say here, and I think it's important -- Eugene is raising some good questions. I'll try to respond in the next day or so; in the meantime, I'm very grateful for all the reactions, both supportive and critical (and both!) . . . please keep them coming, thanks. On Tue, Dec 17, 2013 at 9:10 PM, Volokh, Eugene vol...@law.ucla.edu wrote: The heart of Marty’s argument (I focus for now on item 1 below) is, I think, an empirical claim: Large employers such as Hobby Lobby would be better off just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of [the] enormous cost savings” to compensate employees for the lost coverage, thus keeping the employees happy, and then pocketing the rest of the “enormous cost savings.” (Indeed, if employees grumble over the inconvenience or just the change, the employers can split some of the rest of the enormous cost savings with the employees -- a win-win proposition for employers and employees.) And, if Marty is right, this would be true for employers generally, *not* just religious employers. We should thus expect a large fraction of savvy employers to take advantage of this option, purely out of respect for Mammon quite regardless of God. But I wonder whether this is empirically likely to be true, given not just the nondeductibility of the tax, but also other factors, such as payroll taxes on the compensation payment to the employees. It’s not surprising that the Justice Department hasn’t made this argument, since the Administration has long argued (unless I’m mistaken) that large employers *won’t* drop employer-based health insurance. And the Congressional Budget Office, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, likewise took the view that only a tiny percentage of employers would drop their health insurance, because “the legislation leaves in place substantial financial advantages for many people to receive insurance coverage through their employers, and it provides some new incentives for employers to offer insurance coverage to their employees.” Now of course that was in 2011, and perhaps the analysis today would be different. But the CBO’s estimates still give me pause. And if the CBO is right, and large employers generally would lose financially -- rather than gain from capturing some of the “enormous cost savings” -- by dropping health insurance and adequately compensating employees, then I would think Hobby Lobby and others would be in the same position. The mandate, even enforced as a tax, thus would be a substantial burden. Am I mistaken in this? Marty, do you have any pointers to studies that support your sense of the money flows on this, and contradict what I see as the CBO’s view? Eugene Marty writes: 1. On your first point, even if the 4980H(a) tax were the equivalent of a $3000 assessment (because it's paid with after-tax dollars), the average cost for providing health insurance to employees is, as I understand it, closer to $10,000, so the employer would save about $7000 per employee. (In any event, there are no allegations in these cases that HL or CW is significantly differently situated than a typical employer, e.g., that they have a workforce comprised of almost all single employees with no family coverage.) In order to remain competitive for recruiting or retaining most of their employees, the plaintiffs wouldn't have to kick in any extra money in salary, because the employees would have their exchange-purchased plans subsidized by the federal government (both in terms of the cost-savings realized by virtue of the exchanges themselves as well as the government's premium tax credits and cost-sharing reductions. To be sure, some of their more well-compensated employees *might* have paid less in premiums for the HL plan than they would to purchase a plan on the exchange (*maybe*-- again, there's no allegation or evidence of that here). But to make up *that* hypothetical shortfall, and attract those employees, HL need only use some of its enormous cost savings to sweeten their salaries. (This is presumably what the many large employers who do not provide plans will do.) For all these reasons, it is difficult to imagine HL or CW --or, more to the point, the average large employer -- being financially *worse off* if it pays the assessment. (And again, there's no allegation of facts that would alter that conclusion here, in any event.) ___ 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
Re: Are large employers really better off dropping health insurance?
Sorry it took so long. My response to Eugene and others raising the same question is here: http://balkin.blogspot.com/2013/12/hobby-lobby-part-iii-adoes-federal-law.html As always, I welcome any critiques/suggestions from list-members, thanks. On Wed, Dec 18, 2013 at 11:36 AM, Marty Lederman lederman.ma...@gmail.comwrote: I apologize for not responding right away, but I'm slammed with other stuff. There is a lot to say here, and I think it's important -- Eugene is raising some good questions. I'll try to respond in the next day or so; in the meantime, I'm very grateful for all the reactions, both supportive and critical (and both!) . . . please keep them coming, thanks. On Tue, Dec 17, 2013 at 9:10 PM, Volokh, Eugene vol...@law.ucla.eduwrote: The heart of Marty’s argument (I focus for now on item 1 below) is, I think, an empirical claim: Large employers such as Hobby Lobby would be better off just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of [the] enormous cost savings” to compensate employees for the lost coverage, thus keeping the employees happy, and then pocketing the rest of the “enormous cost savings.” (Indeed, if employees grumble over the inconvenience or just the change, the employers can split some of the rest of the enormous cost savings with the employees -- a win-win proposition for employers and employees.) And, if Marty is right, this would be true for employers generally, *not* just religious employers. We should thus expect a large fraction of savvy employers to take advantage of this option, purely out of respect for Mammon quite regardless of God. But I wonder whether this is empirically likely to be true, given not just the nondeductibility of the tax, but also other factors, such as payroll taxes on the compensation payment to the employees. It’s not surprising that the Justice Department hasn’t made this argument, since the Administration has long argued (unless I’m mistaken) that large employers *won’t* drop employer-based health insurance. And the Congressional Budget Office, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, likewise took the view that only a tiny percentage of employers would drop their health insurance, because “the legislation leaves in place substantial financial advantages for many people to receive insurance coverage through their employers, and it provides some new incentives for employers to offer insurance coverage to their employees.” Now of course that was in 2011, and perhaps the analysis today would be different. But the CBO’s estimates still give me pause. And if the CBO is right, and large employers generally would lose financially -- rather than gain from capturing some of the “enormous cost savings” -- by dropping health insurance and adequately compensating employees, then I would think Hobby Lobby and others would be in the same position. The mandate, even enforced as a tax, thus would be a substantial burden. Am I mistaken in this? Marty, do you have any pointers to studies that support your sense of the money flows on this, and contradict what I see as the CBO’s view? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Can it really be unconstitutional for Congress to create statutes that borrow constitutional law doctrines?
See http://www.jstor.org/stable/1073407 Of course, if a statute incorporates a constitutional test that, according to the Court, had required it to do things no article III court could do -- which is one reading of Smith, namely, that application of the Sherbert/Yoder test was beyond the judicial ken -- then the statute is unconstitutional for having borrowed the constitutional test. That was, as I recall, Marci's reading of Smith -- and not an unreasonable reading, given Scalia's rationale. But I think it fair to say that the Court rejected that reading of Smith -- and of the Court's own alleged institutional disability -- in Cutter, and implicitly in O Centro. On Mon, Dec 30, 2013 at 6:43 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I'd love to hear what others have to say on this, but I just don't see any serious basis for concluding that Congress can't create statutes that borrow constitutional law terminology. Laws of course borrow common-law terms and doctrines all the time; why would they be barred from borrowing constitutional law terms and doctrines? Indeed, Title VI was interpreted in Bakke as incorporating the Equal Protection Clause standard for what constitute permissible race preferences. (I think that was wrong as a matter of statutory construction, but that's the interpretation the Court used, with no suggestion that there was any constitutional problem with such an interpretation.) 18 USC sec. 3509 provides that trial closure orders must be narrowly tailored to a compelling government interest. State disorderly conduct statutes sometimes refer to fighting words. Federal and state obscenity law often incorporates (indeed, has to incorporate) judicially defined concepts such as prurient interest or serious literary, artistic, political, or scientific value. I'm sure others can add to the list. Is there a single precedent from any court that tells us that legislative incorporation of constitutional law terminology that was crafted by courts is unconstitutional? Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, December 30, 2013 12:56 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: courts and lawmaking There is no precedent for Congress to borrow the Court's constitutional doctrine and cases to enact a statute, so the lack of precedent proves nothing. Moreover, a statute that is wholly novel itself raises questions about constitutionality, which the Court has said a number of times. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Dec 30, 2013, at 3:21 PM, Volokh, Eugene vol...@law.ucla.edu wrote: It seems to me that, if we're talking about what's disingenuous, it would be more disingenuous to treat a federal statute that creates a statutory cause of action as in fact an attempt by Congress to amend the Free Exercise Clause. The Equal Protection Clause doesn't extend to private actors, but Title VII creates a federal statutory cause of action. The Fourth Amendment is limited in various ways; Congress routinely creates new privacy protections that go beyond the scope of the Fourth Amendment. Likewise, the Free Exercise Clause doesn't mandate exemptions from generally applicable laws, but Congress is entitled to create such exemptions from federal laws. And I know of no authority for the proposition that Congress may not define its statutory provisions by borrowing a constitutional standard of review that references constitutional cases. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, December 30, 2013 10:08 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edu Subject: Re: courts and lawmaking There needs to be more precision in the use of the term rights. RFRA is in fact an attempt by Congress to amend the Free Exercise Clause by simple majority vote. For Congress, Smith was not the final word on the interpretation of free exercise; instead it inserted Yoder as its preferred interpretation, at the behest of political pressure from religious groups and at the time severely misguided civil rights groups who have finally come to their senses and understand that RFRA is a means for religious groups to undermine minorities and vulnerable populations. RFRA employs a constitutional standard of review that references constitutional cases. It is disingenuous to treat it as anything other than it is. As Boerne pointed out in a fn, as an amendment to the First Am, it violates Art V's amendment requirements. If RFRA is, alternatively, a statutory rights statute, the courts have
The nonprofit contraception services cases
Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.comwrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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: The nonprofit contraception services cases
The government's brief in *Little Sisters*: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.comwrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.comwrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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: The nonprofit contraception services cases
They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: The nonprofit contraception services cases
I meant that shorthand only to repeat what I wrote in my post: The *Little Sisters* case reveals a lacuna in the government's secondary accommodation regulation that the government itself presumably did not anticipate--namely, that the regulation does not guarantee contraception coverage for female employees where (i) their employer is a nonprofit religious organization that objects to such coverage; (ii) the employer self-insures; (iii) the health plan is a church plan; and (iv) the third-party administrator of the church plan itself objects to providing such coverage. The government represented to the district court in *Little Sisters *that it continues to consider potential options to fully and appropriately extend the consumer protections provided by the regulations to self-insured church plans. If and when the government amends its regulations to deal with such a situation, perhaps the *Little Sisters*case will look more like the *Notre Dame* case. But in the meantime, the Little Sisters' employees would not receive contraception coverage if the Little Sisters were to make the self-certification of their objection. On Fri, Jan 3, 2014 at 1:41 PM, Marci Hamilton hamilto...@aol.com wrote: Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in *Little Sisters*: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.comwrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: The nonprofit contraception services cases
And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? 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 To download my scholarly papers, please visit my SSRN pagehttp://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 *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees
Re: The nonprofit contraception services cases
Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.comwrote: And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? 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 To download my scholarly papers, please visit my SSRN pagehttp://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 *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3
Re: The nonprofit contraception services cases
Oops . . . turns out that Notre Dame does prohibit its students from engaging in sex outside of marriage: The University embraces the Catholic Church’s teaching that a genuine and complete expression of love through sex requires a commitment to a total living and sharing together of two persons in marriage. Consequently, students who engage in sexual union outside of marriage may be subject to referral to the University Conduct Process. http://studenthandbook.nd.edu/community-standards/standards/sexual-activity/ I apologize for assuming otherwise . . . On Mon, Jan 6, 2014 at 3:35 PM, Marty Lederman lederman.ma...@gmail.comwrote: Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.comwrote: And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? 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 To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http
Hobby Lobby/Conestoga Wood opening briefs
Linked here: http://balkin.blogspot.com/2014/01/opening-briefs-in-hobby-lobby-and.html On Sun, Dec 8, 2013 at 11:01 PM, Marty Lederman lederman.ma...@gmail.comwrote: Official word from the Court: All briefs for an amicus curiae must be filed on or before Tuesday, January 28, 2014. An amicus curiae brief in support of the Government or in support of neither party shall bear a light green cover, and an amicus curiae brief in support of a non-Government party shall bear a dark green cover. An amicus curiae may file only a single brief in case Nos. 13-354 and 13-356. On Fri, Dec 6, 2013 at 2:02 PM, Marty Lederman lederman.ma...@gmail.comwrote: The Court did not realign any of the parties (somewhat to my surprise), but consolidated amici briefing. Therefore: -- SG brief in HL, and CW brief in CW, are due Friday, Jan. 10 *-- All amici, supporting any side, due Tuesday, Jan. 28* [shades of green on color of briefs TBD, perhaps sometime today] -- SG brief in CW, and HL brief in HL, due Monday, Feb. 10 -- SG reply in HL, and CW reply in CW, due Wednesday, March 12 ___ 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: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Just a quick point to quibble with the factual premises of the selectivity argument. Plans offered by small business *do *have to include the relevant preventive services, including -- but hardly limited to -- contraception services. (The services also include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents; specified annual well-woman visits; gestational diabetes screening; HPV DNA testing; testing for sexually transmitted diseases and HIV screening and counseling; breastfeeding support, supplies and counseling; and domestic violence screening and counseling.) Likewise, the so-called grandfathering exception is merely an ordinary phasing in, or timing, provision, which allows a transition period for compliance with several of the Act's requirements until the plans otherwise make one of several specified changes. The employees of such plans will eventually receive the preventive care coverages (not only contraception -- all those listed above). The only real carve-out -- the only one that would result in employees not receiving contraceptive coverage -- is HHS's own exemption for churches and their auxiliaries. And if *that religious accommodation* is what triggers *Lukumi*, well . . . On Fri, Jan 10, 2014 at 9:37 PM, James Oleske jole...@lclark.edu wrote: The opening brief for Conestoga Wood Specialties Corp. has been filed, and I believe this may be the first time the Supreme Court has been presented with an argument in a party's merits brief as to the scope of the so-called Sherbert-exception to Smith -- the idea expressed in both Smith and Lukumi that although the Free Exercise Clause does not require religious exemptions to be made from uniform legal obligations, religious exemptions may be required when other exemptions to a law are available. In an article last year, I suggested that there remain at least five major unresolved questions about the selective-exemption rule: 1. What is the purpose of the rule: is it designed to guard against the danger of intentional discrimination or to address the adverse impact on religious minorities of unintentional neglect or indifference? 2. Does the rule only apply when a law allows for ad hoc, individualized exemptions to an obligation (e.g., discretionary excuses under a good cause or necessary standard), or does it also apply when the government makes select categorical exemptions to a law? 3. If the rule applies when categorical exemptions are made, how should courts determine whether an existing categorical exemption to a law is sufficiently analogous to the requested religious exemption to be deemed a relevant comparator? 4. How many comparable categorical exemptions must exist before the selective-exemption rule is triggered by the denial of a religious exemption? 5. What is the appropriate level of judicial scrutiny to be applied once the selective-exemption rule is triggered? Conestoga's positions on questions #2 and #5 are what you would expect. On #2, it argues that the selective-exemption rule extends to situations involving categorical exemptions (in this case, the ACA's exemptions for small businesses and grandfathered plans). On #5, it argues for strict scrutiny (which is what the Court indicated in both Smith and Lukumi applies to individualized-exemption situations). Conestoga's brief does not contain much argument relevant to questions #3 and #4. As for #1, I found the most relevant passage in Conestoga's brief to be quite surprising. Usually, advocates of a broad reading of the selective-exemption rule make a point of contending that the rule is not limited to situations involving the danger of discriminatory intent. Yet, Conestoga's brief quotes a portion of the Third Circuit's decision in Fraternal Order of Police Newark Lodge v. Newark that speaks directly to discriminatory intent and is not usually quoted by advocates of a broad reading of the rule: Providing secular exemptions 'while refusing religious exemptions is sufficiently suggestive of discriminatory intent as to trigger heightened scrutiny under Smith and Lukumi.' Br. at 46 (quoting Newark Lodge at 365). As it turns out, this is the very same passage from Newark Lodge that I suggested in my article may narrow the universe of categorical-exemption situations that trigger the selective-exemption rule: [T]the court’s application of the selective-exemption rule in Newark Lodge also included the key phrase, 'while refusing.' That phrase is a reminder of an important but underappreciated fact in the case: the categorical medical exemption was *not* part of the original no-beard policy and was only adopted *after* the request for the religious exemptions was made. Under those circumstances, granting the categorical medical exemption
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
*No* businesses have to offer plans (as I've explained in several posts at Balkinization). But if a plan does so, it must include preventive services. And if the employer -- large or small -- does not offer a plan, its employees will be eligible for an exchange plan, which must also include such services. Either way, employees are entitled to the coverage -- which was the point of the legislation, viz., to create a new universal preventive services benefit. Sent from my iPhone On Jan 11, 2014, at 9:26 AM, nathan chapman nathan.s.chap...@gmail.com wrote: Marty, Quick clarification: Do small business have to offer plans? (I know that small businesses are not subject to the same Title VII standards as large businesses, so there is strong legislative precedent for treating small businesses differently than, say, large closely held for profits with religious objections.) Nathan On Jan 11, 2014, at 7:54 AM, Marty Lederman lederman.ma...@gmail.com wrote: Just a quick point to quibble with the factual premises of the selectivity argument. Plans offered by small business do have to include the relevant preventive services, including -- but hardly limited to -- contraception services. (The services also include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents; specified annual well-woman visits; gestational diabetes screening; HPV DNA testing; testing for sexually transmitted diseases and HIV screening and counseling; breastfeeding support, supplies and counseling; and domestic violence screening and counseling.) Likewise, the so-called grandfathering exception is merely an ordinary phasing in, or timing, provision, which allows a transition period for compliance with several of the Act's requirements until the plans otherwise make one of several specified changes. The employees of such plans will eventually receive the preventive care coverages (not only contraception -- all those listed above). The only real carve-out -- the only one that would result in employees not receiving contraceptive coverage -- is HHS's own exemption for churches and their auxiliaries. And if that religious accommodation is what triggers Lukumi, well . . . On Fri, Jan 10, 2014 at 9:37 PM, James Oleske jole...@lclark.edu wrote: The opening brief for Conestoga Wood Specialties Corp. has been filed, and I believe this may be the first time the Supreme Court has been presented with an argument in a party's merits brief as to the scope of the so-called Sherbert-exception to Smith -- the idea expressed in both Smith and Lukumi that although the Free Exercise Clause does not require religious exemptions to be made from uniform legal obligations, religious exemptions may be required when other exemptions to a law are available. In an article last year, I suggested that there remain at least five major unresolved questions about the selective-exemption rule: 1. What is the purpose of the rule: is it designed to guard against the danger of intentional discrimination or to address the adverse impact on religious minorities of unintentional neglect or indifference? 2. Does the rule only apply when a law allows for ad hoc, individualized exemptions to an obligation (e.g., discretionary excuses under a good cause or necessary standard), or does it also apply when the government makes select categorical exemptions to a law? 3. If the rule applies when categorical exemptions are made, how should courts determine whether an existing categorical exemption to a law is sufficiently analogous to the requested religious exemption to be deemed a relevant comparator? 4. How many comparable categorical exemptions must exist before the selective-exemption rule is triggered by the denial of a religious exemption? 5. What is the appropriate level of judicial scrutiny to be applied once the selective-exemption rule is triggered? Conestoga's positions on questions #2 and #5 are what you would expect. On #2, it argues that the selective-exemption rule extends to situations involving categorical exemptions (in this case, the ACA's exemptions for small businesses and grandfathered plans). On #5, it argues for strict scrutiny (which is what the Court indicated in both Smith and Lukumi applies to individualized-exemption situations). Conestoga's brief does not contain much argument relevant to questions #3 and #4. As for #1, I found the most relevant passage in Conestoga's brief to be quite surprising. Usually, advocates of a broad reading of the selective-exemption rule make a point of contending that the rule is not limited to situations involving the danger of discriminatory intent. Yet, Conestoga's brief
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Not sure I understand what you're saying here, Nathan. The law is designed so that virtually all plans -- whether employer plans, or Medicaid, or Medicare, or exchange plans -- provide access to cost-free preventive services coverage (including but by no means limited to contraceptive coverage). There is simply not the sort of underinclusiveness, with respect to the government interest, that raises a question under the compelling interest component of RFRA (or the Sherbert doctrine), or under Lukumi. If I understand you correctly, you're now shifting away from the compelling interest/underinclusiveness question to the question of whether RFRA's least restrictive means test is met. Which has nothing to do with Lukumi, or underinclusiveness. If that's what you're suggesting, then the question would become whether the government's means -- the rule that *all* health insurance plans must coverage a litany of preventive services -- is the least restrictive means of furthering that compelling governmental interest, or whether the government could satisfy that interest just as easily even if it granted religious exemptions whenever any employers' owners had a religious objection to coverage of any of those required preventive services (as well as all the additional, pre-existing covered services, such as minimum hospital stays after birth, and patient costs for items and services furnished in connection with participation in certain clinical trials, etc.). I'm happy to discuss that question, too -- it is certainly present in the HL and CW cases -- but it has little or nothing to do with the topic of this thread, underinclusiveness, or with any legal distinction between large and small employers (except that of course an exemption for large employers would be much *more* harmful to the government interests -- or much more costly for the government to counteract in other ways -- than would be an exemption for small employers). On Sat, Jan 11, 2014 at 10:13 AM, nathan chapman nathan.s.chap...@gmail.com wrote: I take it that RFRA and Lukumi incorporate a means test, not just an ends test. If the government can meet its goal without forcing small employers to subsidize it, why not with a small class of large for profit corps? The government may have a good answer -- I don't mean to imply that it doesn't. But as I take the tests, that's the question it must answer. Again, for what its worth, on treating small employers differently, I think the government has good *legislative* precedent in Title VII, though the court has not considered that exception in the context of a RFRA/Lukumi challenge, and I'm not sure how legislative precedent ought to factor into what is a pretty straightforward balancing and means/end analysis. Perhaps the legislative precedent creates an intuitive baseline, a law-world in which we ordinarily think of small businesses as different, and treating them differently under the ACA is not really an exception, but the rule. On Jan 11, 2014, at 10:03 AM, Marty Lederman lederman.ma...@gmail.com wrote: Businesses with fewer than 50 fulltime employees are subject to all of the same federal laws as larger employers -- and all the same incentives to offer employee plans -- with one principal exception: If they do not offer a plan at all, they do not need to pay the 4980H(a) assessment to help fund the cost of the exchanges. But how is that distinction relevant to the underinclusiveness question? The argument -- either under RFRA's compelling interest test or under *Lukumi* -- is that the government must not care all that much about no-cost contraceptive services (as well as, I suppose, colorectal cancer screening, diabetes screening for those with high blood pressure, immunizations, basic childhood preventive check-ups, etc.), because millions of people won't be eligible for those services. But that's wrong -- virtually everyone will be eligible for such services, whether they work for a small employer or a large employer -- or if they don't work at all. On Sat, Jan 11, 2014 at 9:49 AM, nathan chapman nathan.s.chap...@gmail.com wrote: I suppose I need to be more specific. Are small businesses subject to the same taxes/penalties/fees/tithes/required payments to the government that large businesses are subject to if they do not provide a health plan? On Jan 11, 2014, at 9:42 AM, Marty Lederman lederman.ma...@gmail.com wrote: *No* businesses have to offer plans (as I've explained in several posts at Balkinization). But if a plan does so, it must include preventive services. And if the employer -- large or small -- does not offer a plan, its employees will be eligible for an exchange plan, which must also include such services. Either way, employees are entitled to the coverage -- which was the point of the legislation, viz., to create a new universal preventive services benefit. Sent from my iPhone On Jan 11, 2014, at 9:26 AM, nathan
Re: The government's brief
I don't read it to say anything of the sort: Footnote 2 is about what can happen if an employer *that* *sponsors a plan* fails to include required coverage. On Sat, Jan 11, 2014 at 12:08 PM, Douglas Laycock dlayc...@virginia.eduwrote: Footnote 2 of the government’s brief appears to disclaim, and rebut, the view that large employers are free to drop health insurance and pay the taxes. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message 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: The government's brief
Indeed, just one week ago, in its *Little Sisters *brief, the government told the Court this: The preventive-services coverage provision in general, and the contraceptive-coverage provision in particular, apply only if an employer offers a group health plan. Employers, however, are not required to offer group health plans in the first place. Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not provide coverage, 26 U.S.C. 4980H (Supp. V 2011), but that gives them a “choice” between two legal options: provide a group health plan or risk payment of the tax. *Liberty Univ.*, 733 F.3d at 98; cf. *National Fed’n of Indep. Bus. v. Sebelius*, 132 S. Ct. 2566, 2596-2597 (2012). On Sat, Jan 11, 2014 at 12:13 PM, Marty Lederman lederman.ma...@gmail.comwrote: I don't read it to say anything of the sort: Footnote 2 is about what can happen if an employer *that* *sponsors a plan* fails to include required coverage. On Sat, Jan 11, 2014 at 12:08 PM, Douglas Laycock dlayc...@virginia.eduwrote: Footnote 2 of the government’s brief appears to disclaim, and rebut, the view that large employers are free to drop health insurance and pay the taxes. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message 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: varieties of underinclusiveness
Nathan: I agree that the government has other ways to achieve its compelling interest -- paying for the coverage itself -- if by coverage you mean health insurance coverage. And thus, for unemployed persons, and employees who do not have access to employer-offered insurance, that's exactly what Congress has done: It offers access to affordable insurance plans under Medicare, Medicaid and the ACA exchanges. And every employer has the option of ceding the responsibility for such coverage to the government-created and government-subsidized exchanges if it wishes. On Sat, Jan 11, 2014 at 12:03 PM, nathan chapman nathan.s.chap...@gmail.com wrote: Marty, I ran out of space on the other chain. Thanks for carefully responding to my questions, and I'm sorry for any confusion. I think nonreligious statutory exemptions could be relevant to RFRA and First Amendment analyses in at least three different ways. First, they could suggest that the government's interest isn't really compelling. I don't take issue with your analysis of that. An exemption could also suggest an intent to discriminate on the basis of religion, ala Lukumi. I wouldn't find that argument persuasive here. The ACA small business exemption, in particular, could also suggest that the government has other ways to achieve its compelling interest -- paying for the coverage itself. I'm not sure I find it persuasive in this case -- I just meant to suggest that pointing out the exemption was not *irrelevant* to the RFRA analysis. What is somewhat ironic here, and perhaps it is a necessary feature of the way these different analyses interact, is that by addressing the first issue, that is, by making sure everyone is eligible for coverage and therefore showing that coverage is a compelling government interest, the government has also demonstrated a less restrictive way of meeting that compelling government interest. In terms of nomenclature, I think of these as three different questions of underinclusivity. But of course I understand how folks could disagree with the lingo. Nathan ___ 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: The government's brief
Derek: I wasn't making any point here except that, contrary to the assumptions of virtually all plaintiffs and courts of appeals, there is no legal *requirement* that any employer offer its employees a health insurance plan. That's not a non sequitur -- it's a straightforward refutation of a principal premise of these cases. Now, I agree that that does not entirely answer the question of whether federal law imposes substantial pressure, for purposes of RFRA/Sherbert, on any particular employer to offer contraception coverage. It might or it might not, depending on the employer in question and a host of complex variables. Elsewhere -- not in this thread -- I have written at length on this question. It is true, for example, that *some* employees will prefer their employer plan to a plan available on the exchange -- principally as the result of a favored tax treatment for employer premiums (they're not counted as income) that federal law has offered for decades. Other employees, however (mostly lower- and middle-class employees), will prefer insurance from an exchange, especially since they will also enjoy at least some of the money previously used for former employer premiums in the form of a wage increase. What does this mean for *employers*? It depends. On the one hand, an employer might save a lot of money by not having to pay premiums any longer and not having to bear the costs of administering the plan -- a much, much greater savings than the cost of the section 4980H(a) assessment that it would incur. On the other hand, it might (or might not) have to raise wages to retain some employees -- something that itself depends on a host of variables, including the nature of its workforce; what percentage of employees would be better off getting insurance on the exchanges; the elasticity of the relevant labor market; their competitors' practices; etc. And even if it did have to raise wages to retain some employees, that fact will be quite important to some employers, but not to others, depending on the relative need or desire to retain those employees. And then, even in those cases where the costs of dropping the plan turn out to be greater than the benefits, one would still have to assess whether the preference to keep one's plan is significant enough to impose substantial pressure upon the employer to violate its felt religious obligation. (An employer might, for instance, conclude that there is only a *marginal*benefit in keeping its plan, putting aside the the contraception coverage question.) In any event, all of this is discussed in greater detail elsewhere. The only thing Doug and I were writing about here was whether, under the law, large employers are free to drop health insurance. They are. On Sat, Jan 11, 2014 at 1:38 PM, Gaubatz, Derek dgaub...@imb.org wrote: Maybe I'm missing your point, but it seems to me that forcing religious employers to such a coercive choice hardly relieves the burden. Why should an employer be forced, because of its religious convictions to refuse to offer its employees health coverage? The fact that there is a legal option to pay a tax seems to be a nonsequiter. Many employees and employers will see an employer that doesn't offer them health coverage to be much less attractive than one that does, particularly when it means forcing the employees into a health exchange system that, shall we say, has its own problems. Employers without religious objections to the abortifacient mandate aren't put to this choice of offering what many employees will see as a less valuable employment package. To force it only on those with such objections still leaves them burdened. Grace and peace to you, Derek *From: *Marty Lederman *Sent: *Saturday, January 11, 2014 12:20 PM *To: *Law Religion issues for Law Academics *Reply To: *Marty Lederman *Subject: *Re: The government's brief Indeed, just one week ago, in its *Little Sisters *brief, the government told the Court this: The preventive-services coverage provision in general, and the contraceptive-coverage provision in particular, apply only if an employer offers a group health plan. Employers, however, are not required to offer group health plans in the first place. Large employers (those with more than 50 full-time-equivalent employees) face a potential tax if they do not provide coverage, 26 U.S.C. 4980H (Supp. V 2011), but that gives them a “choice” between two legal options: provide a group health plan or risk payment of the tax. *Liberty Univ.*, 733 F.3d at 98; cf. *National Fed’n of Indep. Bus. v. Sebelius*, 132 S. Ct. 2566, 2596-2597 (2012). On Sat, Jan 11, 2014 at 12:13 PM, Marty Lederman lederman.ma...@gmail.com wrote: I don't read it to say anything of the sort: Footnote 2 is about what can happen if an employer *that* *sponsors a plan* fails to include required coverage. On Sat, Jan 11, 2014 at 12:08 PM, Douglas Laycock dlayc...@virginia.eduwrote
Re: Conestoga Opening Brief -- Free Exercise/Selective Exemption Argument
Thanks for all the helpful responses on this. I've published a post on the underinclusiveness question here: http://balkin.blogspot.com/2014/01/hobby-lobby-part-iv-myth-of.html On Sat, Jan 11, 2014 at 7:54 AM, Marty Lederman lederman.ma...@gmail.comwrote: Just a quick point to quibble with the factual premises of the selectivity argument. Plans offered by small business *do *have to include the relevant preventive services, including -- but hardly limited to -- contraception services. (The services also include cholesterol screening; colorectal cancer screening; diabetes screening for those with high blood pressure; certain immunizations; “evidence-informed preventive care and screenings” for infants, children, and adolescents; specified annual well-woman visits; gestational diabetes screening; HPV DNA testing; testing for sexually transmitted diseases and HIV screening and counseling; breastfeeding support, supplies and counseling; and domestic violence screening and counseling.) Likewise, the so-called grandfathering exception is merely an ordinary phasing in, or timing, provision, which allows a transition period for compliance with several of the Act's requirements until the plans otherwise make one of several specified changes. The employees of such plans will eventually receive the preventive care coverages (not only contraception -- all those listed above). The only real carve-out -- the only one that would result in employees not receiving contraceptive coverage -- is HHS's own exemption for churches and their auxiliaries. And if *that religious accommodation* is what triggers *Lukumi*, well . . . On Fri, Jan 10, 2014 at 9:37 PM, James Oleske jole...@lclark.edu wrote: The opening brief for Conestoga Wood Specialties Corp. has been filed, and I believe this may be the first time the Supreme Court has been presented with an argument in a party's merits brief as to the scope of the so-called Sherbert-exception to Smith -- the idea expressed in both Smith and Lukumi that although the Free Exercise Clause does not require religious exemptions to be made from uniform legal obligations, religious exemptions may be required when other exemptions to a law are available. In an article last year, I suggested that there remain at least five major unresolved questions about the selective-exemption rule: 1. What is the purpose of the rule: is it designed to guard against the danger of intentional discrimination or to address the adverse impact on religious minorities of unintentional neglect or indifference? 2. Does the rule only apply when a law allows for ad hoc, individualized exemptions to an obligation (e.g., discretionary excuses under a good cause or necessary standard), or does it also apply when the government makes select categorical exemptions to a law? 3. If the rule applies when categorical exemptions are made, how should courts determine whether an existing categorical exemption to a law is sufficiently analogous to the requested religious exemption to be deemed a relevant comparator? 4. How many comparable categorical exemptions must exist before the selective-exemption rule is triggered by the denial of a religious exemption? 5. What is the appropriate level of judicial scrutiny to be applied once the selective-exemption rule is triggered? Conestoga's positions on questions #2 and #5 are what you would expect. On #2, it argues that the selective-exemption rule extends to situations involving categorical exemptions (in this case, the ACA's exemptions for small businesses and grandfathered plans). On #5, it argues for strict scrutiny (which is what the Court indicated in both Smith and Lukumi applies to individualized-exemption situations). Conestoga's brief does not contain much argument relevant to questions #3 and #4. As for #1, I found the most relevant passage in Conestoga's brief to be quite surprising. Usually, advocates of a broad reading of the selective-exemption rule make a point of contending that the rule is not limited to situations involving the danger of discriminatory intent. Yet, Conestoga's brief quotes a portion of the Third Circuit's decision in Fraternal Order of Police Newark Lodge v. Newark that speaks directly to discriminatory intent and is not usually quoted by advocates of a broad reading of the rule: Providing secular exemptions 'while refusing religious exemptions is sufficiently suggestive of discriminatory intent as to trigger heightened scrutiny under Smith and Lukumi.' Br. at 46 (quoting Newark Lodge at 365). As it turns out, this is the very same passage from Newark Lodge that I suggested in my article may narrow the universe of categorical-exemption situations that trigger the selective-exemption rule: [T]the court’s application of the selective-exemption rule in Newark Lodge also included the key phrase, 'while refusing.' That phrase is a reminder
Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
It seems, then, that the Court has given the Little Sisters substantial relief by not requiring them to sign the government form. No it hasn't. The government concedes that it lacks the legal authority to require the third-party administrator of a church plan -- here, Christian Bros. Services -- to provide the coverage. So the signature has no effect one way or the other. Truly, this is much ado about nothing. On Fri, Jan 24, 2014 at 6:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I found the form. Here is a statement that is included on the back of the government form that the Little Sisters would have had to sign, absent the Court’s order: The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. It seems to me that signing a form that says that the third party administrator has the obligations set out in the CFR is the equivalent of directing the third party administrator to comply with those regulations. They would be notifying the administrator that it has the obligations set out in the CFR. I suppose, in addition, that the Little Sisters dispute whether the government can require their third party administrator to comply with those regulations; the form would require the Little Sisters to make a statement that they do not believe to be true. The last sentence of the form suggests that the obligations of the plan administrator under the CFR are included as part of the health care plan. In effect, the Little Sisters, if they signed the form, would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator has the obligations set out in the CFR, (3) directing the third party administrator to provide the objectionable services, and (4) amending the plan documents to include a requirement that the third party administrator do so. It seems, then, that the Court has given the Little Sisters substantial relief by not requiring them to sign the government form. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* Scarberry, Mark *Sent:* Friday, January 24, 2014 2:45 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Does anyone have a copy of the government-prescribed form that the Court said the Little Sisters didn’t have to use? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marc DeGirolami *Sent:* Friday, January 24, 2014 2:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Nope. It looks like the Court told them to send the government a copy of their complaint. *From: *Marci Hamilton hamilto...@aol.com *Reply-To: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Date: *Friday, January 24, 2014 at 5:32 PM *To: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Cc: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Subject: *Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case It looks like the Court told them to do what they said they didn't want to do. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 24, 2014, at 5:28 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: The Supreme Court today extended the injunction pending appeal in Little Sisters of the Poor case, but with unusual conditions-- see
Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
Kevin's account *might *be relevant in case like Notre Dame's, where the insurer and third-party administrator are in fact providing the coverage after ND opted out. But that account is of no moment in a case such as Little Sisters, where the women would not receive coverage from Christian Bros. no matter which document LS did or did not sign. On Fri, Jan 24, 2014 at 6:32 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: For another discussion of the government form, see http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html . Mark *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Scarberry, Mark *Sent:* Friday, January 24, 2014 3:28 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case I found the form. Here is a statement that is included on the back of the government form that the Little Sisters would have had to sign, absent the Court’s order: The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. It seems to me that signing a form that says that the third party administrator has the obligations set out in the CFR is the equivalent of directing the third party administrator to comply with those regulations. They would be notifying the administrator that it has the obligations set out in the CFR. I suppose, in addition, that the Little Sisters dispute whether the government can require their third party administrator to comply with those regulations; the form would require the Little Sisters to make a statement that they do not believe to be true. The last sentence of the form suggests that the obligations of the plan administrator under the CFR are included as part of the health care plan. In effect, the Little Sisters, if they signed the form, would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator has the obligations set out in the CFR, (3) directing the third party administrator to provide the objectionable services, and (4) amending the plan documents to include a requirement that the third party administrator do so. It seems, then, that the Court has given the Little Sisters substantial relief by not requiring them to sign the government form. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* Scarberry, Mark *Sent:* Friday, January 24, 2014 2:45 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Does anyone have a copy of the government-prescribed form that the Court said the Little Sisters didn’t have to use? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marc DeGirolami *Sent:* Friday, January 24, 2014 2:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Nope. It looks like the Court told them to send the government a copy of their complaint. *From: *Marci Hamilton hamilto...@aol.com *Reply-To: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Date: *Friday, January 24, 2014 at 5:32 PM *To: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Cc: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Subject: *Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case It looks like the
Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
It is an implied message of support *for what*? What rational human being would construe: We have a religious objection to providing contraceptive coverage to mean we support coverage of contraceptive coverage? Seriously, we are so far down the rabbit hole here . . . On Fri, Jan 24, 2014 at 6:48 PM, Michael Worley mwor...@byulaw.net wrote: Sending the form to the third-party insurer is the burden, because it is an implied message of support Insurer, you need to provide contraception because we don't On Fri, Jan 24, 2014 at 4:31 PM, Marci Hamilton hamilto...@aol.comwrote: What exactly is the burden on the Little Sisters again? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 24, 2014, at 6:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I found the form. Here is a statement that is included on the back of the government form that the Little Sisters would have had to sign, absent the Court’s order: The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. It seems to me that signing a form that says that the third party administrator has the obligations set out in the CFR is the equivalent of directing the third party administrator to comply with those regulations. They would be notifying the administrator that it has the obligations set out in the CFR. I suppose, in addition, that the Little Sisters dispute whether the government can require their third party administrator to comply with those regulations; the form would require the Little Sisters to make a statement that they do not believe to be true. The last sentence of the form suggests that the obligations of the plan administrator under the CFR are included as part of the health care plan. In effect, the Little Sisters, if they signed the form, would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator has the obligations set out in the CFR, (3) directing the third party administrator to provide the objectionable services, and (4) amending the plan documents to include a requirement that the third party administrator do so. It seems, then, that the Court has given the Little Sisters substantial relief by not requiring them to sign the government form. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* Scarberry, Mark *Sent:* Friday, January 24, 2014 2:45 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Does anyone have a copy of the government-prescribed form that the Court said the Little Sisters didn’t have to use? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marc DeGirolami *Sent:* Friday, January 24, 2014 2:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case Nope. It looks like the Court told them to send the government a copy of their complaint. *From: *Marci Hamilton hamilto...@aol.com *Reply-To: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Date: *Friday, January 24, 2014 at 5:32 PM *To: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Cc: *Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Subject: *Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case It looks like the Court told them to do what they said they didn't want to do. Marci Marci A. Hamilton Verkuil Chair in Public Law
Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
No, it would not be doing anything of the sort, because *the government has acknowledged that the administrator has no such obligation* and that *the form has no such effect as to church plans.* On Fri, Jan 24, 2014 at 6:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: In response to both Marci and Marty: As I said, by signing the form, the Little Sisters would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator has the obligations set out in the CFR, (3) directing the third party administrator to provide the objectionable services, and (4) amending the plan documents to include a requirement that the third party administrator do so. That’s the burden. Christian Bros. then can assert a right not to provide the coverage. OK; so the services (and drugs) won’t be provided. That would not change the fact that the Little Sisters would have directed Christian Bros. to provide them, nor that the Little Sisters would have said (under government compulsion) something that they don’t believe (and that, according to Marty, simply isn’t true), namely that the administrator must comply with the regulations. It also would not change the fact that the Little Sisters would have amended the plan documents to include a requirement that Christian Bros. provide the services, even though the government could not in the end require Christian Bros. to do so. Or am I mistaken as to the contents of the regs that the Little Sisters would be directing Christian Bros. to comply with? Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, January 24, 2014 3:39 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case It seems, then, that the Court has given the Little Sisters substantial relief by not requiring them to sign the government form. No it hasn't. The government concedes that it lacks the legal authority to require the third-party administrator of a church plan -- here, Christian Bros. Services -- to provide the coverage. So the signature has no effect one way or the other. Truly, this is much ado about nothing. On Fri, Jan 24, 2014 at 6:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I found the form. Here is a statement that is included on the back of the government form that the Little Sisters would have had to sign, absent the Court’s order: The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. It seems to me that signing a form that says that the third party administrator has the obligations set out in the CFR is the equivalent of directing the third party administrator to comply with those regulations. They would be notifying the administrator that it has the obligations set out in the CFR. I suppose, in addition, that the Little Sisters dispute whether the government can require their third party administrator to comply with those regulations; the form would require the Little Sisters to make a statement that they do not believe to be true. The last sentence of the form suggests that the obligations of the plan administrator under the CFR are included as part of the health care plan. In effect, the Little Sisters, if they signed the form, would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator has the obligations set out in the CFR, (3) directing the third party administrator to provide the objectionable services, and (4) amending the plan documents to include a requirement that the third party administrator do so. It seems
Re: Supreme Court Issues Compromise Injunction Pending Appeal In Contraceptive Mandate Case
Great analogy, Michael! Seriously? I can't recall any case in which so many people have refused to take yes for an answer. [To beat a dead horse . . . here's the actual situation: The law provides that all women in the U.S. are entitled to reimbursement without cost for preventive care, including (but not limited to) contraception. And the way this public benefit is provided is through the woman's insurance policy, whether provided by an employer or not. An employer that chooses to offer an insurance plan accordingly must include the preventive services coverage in that plan. The government says to religious nonprofit employers, however: If you don't want to offer such coverage in your plan, ok, just let us know, and we'll require someone else to do it. (The analogy I offer in my posts is the Catholic judge who recuses from a death penalty case, thereby obligating the nonreligious judge down the hall to cover the case.) So, far, that's the Notre Dame case (see the last section of my post here - http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html) . . . which I would suggest has virtually nothing in common with the stolen car hypo. OK, but in *this* case, we don't even have *that* -- here, once LS expresses its religious objection, *no one else is required to provide the coverage* and, whadda ya know?: the LS employees do not receive the benefit to which virtually all other women are entitled. Grand theft auto, I tell ya.] On Fri, Jan 24, 2014 at 7:08 PM, Michael Worley mwor...@byulaw.net wrote: If I say; I oppose robbery but here are the keys to the car, and I give the keys to someone who is obligated by law (or may in the future be obligated) to rob my neighbor, no matter how loudly I proclaim I oppose robbery, I'm still helping in the robbery. On Fri, Jan 24, 2014 at 4:56 PM, Marty Lederman lederman.ma...@gmail.comwrote: It is an implied message of support *for what*? What rational human being would construe: We have a religious objection to providing contraceptive coverage to mean we support coverage of contraceptive coverage? Seriously, we are so far down the rabbit hole here . . . On Fri, Jan 24, 2014 at 6:48 PM, Michael Worley mwor...@byulaw.netwrote: Sending the form to the third-party insurer is the burden, because it is an implied message of support Insurer, you need to provide contraception because we don't On Fri, Jan 24, 2014 at 4:31 PM, Marci Hamilton hamilto...@aol.comwrote: What exactly is the burden on the Little Sisters again? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 24, 2014, at 6:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I found the form. Here is a statement that is included on the back of the government form that the Little Sisters would have had to sign, absent the Court’s order: The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement. Notice to Third Party Administrators of Self-Insured Health Plans In the case of a group health plan that provides benefits on a self-insured basis, the provision of this certification to a third party administrator for the plan that will process claims for contraceptive coverage required under 26 CFR 54.9815-2713(a)(1)(iv) or 29 CFR 2590.715- 2713(a)(1)(iv) constitutes notice to the third party administrator that the eligible organization: (1) Will not act as the plan administrator or claims administrator with respect to claims for contraceptive services, or contribute to the funding of contraceptive services; and (2) The obligations of the third party administrator are set forth in 26 CFR 54.9815-2713A, 29 CFR 2510.3-16, and 29 CFR 2590.715-2713A. This certification is an instrument under which the plan is operated. It seems to me that signing a form that says that the third party administrator has the obligations set out in the CFR is the equivalent of directing the third party administrator to comply with those regulations. They would be notifying the administrator that it has the obligations set out in the CFR. I suppose, in addition, that the Little Sisters dispute whether the government can require their third party administrator to comply with those regulations; the form would require the Little Sisters to make a statement that they do not believe to be true. The last sentence of the form suggests that the obligations of the plan administrator under the CFR are included as part of the health care plan. In effect, the Little Sisters, if they signed the form, would be (1) notifying the administrator that it must comply with the regs, (2) stating that the administrator
Hobby Lobby/Conestoga Wood -- Whose Exercise of Religion?
While you're all waiting with bated breath to read all the amicus briefs (more the 54 so far), here's yet another post, this one on the question of religious exercise by for-profit corporations and their owners/employees/directors: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html I fear that there'll be much in the amicus briefs that might cause me to reconsider some of what I wrote here; but it's a perspective I haven't seen yet in the briefs, decisions and blogposts, so I thought I'd get it out there for your consideration before we all go down the rabbit hole . . . . ___ 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.
Hobby Lobby/Conestoga Wood briefs -- and an historical question
Hobby Lobby brief: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-354-bs-1-copy.pdf Government brief in Conestoga Wood: http://sblog.s3.amazonaws.com/wp-content/uploads/2014/02/13-356bsUnitedStates-copy.pdf I have a question for the members of the listserv: The main point of the government brief is that -- whether one views the important question as being whether the claim ought to be excluded at the outset because it's brought by a for-profit corporation and its owners, or as being whether the claim should survive application of RFRA -- for-profit employers should not be entitled to RFRA exemptions at the expense of their employees. That is to say, the Court should basically adopt what appeared to have been the stand-alone holding in Part III of *Lee*. Here are the key passages from pages 18 and 11: *Petitioners do not cite a single case predating litigation over the contraceptive-coverage provision in which a court held that either the Free Exercise Clause or RFRA entitled a for-profit corporation--or its owners, managers, or directors--to a corporate exemption from generally applicable business or employment regulation. *To the contrary, this Court has held that [w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Lee, 455 U.S. at 261. Lee rejected the free-exercise claim of a sole proprietor personally subject to liability for violating the generally applicable provision he challenged. See Gov't Hobby Lobby Br. 18. The logic of that decision is even more compelling when such a claim is advanced by a for-profit corporation, such as Conestoga. Lee is part of the pre-Smith jurisprudence that Congress meant RFRA to restore, see id. at 15-16, and its rule should dispose of this case. * * * *There is no tradition in our Nation of providing for-profit corporations with religion-based exemptions from neutral and generally applicable laws.*Our traditions instead reflect an understanding that to carve out an exemption based on the asserted exercise of religion by for-profit corporations would upset the balance not simply between adherents and the government, but rather among adherents, the government, and employees and other third parties who may not share the religious views of the corporation's owners. Here's my question for the list, prompted by the government's formulation: Put aside the question of incorporation, as such. Have there been any cases, ever, in which a *for-profit employer* has been afforded a RFRA or Free Exercise exemption to the detriment of its employees, based either on its own or its owners/directors' religious exercise? [Please note that I am not arguing that if there is no such historical example, it means these cases should (or should not) be dismissed. I'm merely wondering whether the historical account is correct.] Apologies if this is addressed in one of the amicus briefs and I overlooked it. Thanks in advance for any information. ___ 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: Posner on oral advocacy in religion caseesri
Yes, Scott, that is one part of ND's claim -- that the form not only notifies the government and Aetna/Meritain of ND's objection, but also sets in motion, or triggers or enables Aetna and Meritain to offer independent coverage. As I've discussed at greater length here -- http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html-- that argument seems to me to prove way too much, as it might be raised in any number of cases (exemptions from the draft; judicial recusal; a pharmacist who refuses to dispense a drug) in which the objector's objection is what triggers the obligation of someone else to do what the objector will not. And as to the argument that the certification form is technically an instrument of ND's own plan, I'm not sure why that would matter in the complicity analysis but, in any event, that's why Posner asked the hypo in which that is not the case . . . and counsel said ND would still have an objection, even if the certification were sent directly to the USG and were not a plan instrument. On Fri, Feb 14, 2014 at 4:21 PM, Scot Zentner zent...@csusb.edu wrote: I am not sure, but is it not the case that ND's precise claim is that the exemption part of the form is not the problem, but the fact that the form is also an instrument that sets in motion the provision of contraceptive services by the third party? So ND's objection is that the employee would not have contraceptives but for the provision of insurance by ND and its signing of the form. Scot Zentner Professor Political Science CSU, San Bernardino -- *From:* conlawprof-boun...@lists.ucla.edu [ conlawprof-boun...@lists.ucla.edu] on behalf of Marci Hamilton [ hamilton.ma...@gmail.com] *Sent:* Friday, February 14, 2014 12:46 PM *To:* Marty Lederman *Cc:* conlawp...@lists.ucla.edu *Subject:* Re: Posner on oral advocacy in religion caseesri I don't want to put too fine a point on this, but this entire line of reasoning by ND is utter insanity. The good news is that the religious groups have gotten too clever by half and awakened the women and civil rights groups in the country who did not understand how RFRA operates against the vulnerable. It is, however, the natural end point of the likelihood that believers and institutions would try to exploit RFRA to its absolute maximum limits. Every group/individual is likely to exploit the power they have. That is one of the most important principles the US is built on. But the people, the Constitution, and the state constitutions are supposed to guard against such overreaching. If this is what RFRA requires, it is a violation of the Establishment Clause. All that is left is for someone to claim that their religious faith is substantially burdened when they think about their neighbor/student/employee using a condom (preventing conception), and condoms should not be approved for sale by the FDA because of the burden they are experiencing. If I were on the other side in the ND case, I would suggest a sincerity challenge, and depositions of every higher-up at ND to find out if they have ever used birth control. Marci ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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: Posner on oral advocacy in religion caseesri
Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which *everyone *is entitled? Likewise, under the ACA, virtually *all *Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that *must* include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, *just as virtually every other plan must*. Notre Dame, then, is endeavoring to deny its employees and students what *all other employees and students *are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, davidebernst...@aol.com wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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 conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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: Hobby Lobby/Conestoga Wood briefs -- and an historical question
I think I'm all apples, Doug. In cases where the government has decided *that commercial actors generally have an obligation that provides benefits across-the-board* -- that the obligation to do X is now an ordinary incident of commercial activity -- legislatures have not, or have rarely, offered a religious exemption to those actors who are religiously motivated. (The Kansas bill Chip cited would be a counterexample that proves the rule, but it appears to be headed for defeat.) But in cases, like the Church Amendment and the Washington and Oregon statutes, where the legislature determines that *no one should have such a duty in the first instance*, there is, of course, no need for a religious* exemption*, because there's no generally applicable rule to which the exemption would apply. The preventive services requirement is of the former sort -- the exemption Hobby Lobby is seeking would deny its women employees a benefit to which virtually all other women in the United States will be entitled. In order to be analogous to 238a, or to the Washington and Oregon statutes, the ACA would have to provide something like this: No health insurance plan shall be required to ignore preexisting conditions, or to cover dependents of participants through age 26, or to include cost-free reimbursement for preventive services such as colorectal cancer screening, immunizations, and women's health services. But in fact, the law provides exactly the opposite: that *all *health insurance plans must include all those things. That's why a religious exemption is being sought here -- because the generally applicable baseline rule is that an insurance plan in America covers these minimum services. There is no analogous federal law that all medical facilities must perform abortions -- to the contrary. On Sun, Feb 16, 2014 at 2:40 PM, Douglas Laycock dlayc...@virginia.eduwrote: Marty, you're mixing apples and oranges. The distinctions you offer don't go to willingness or unwillingness to protect for-profit entities. There is a constitutional right to abortion. But no one is obligated to provide one for a patient. And the conscience laws say that no one can impose such an obligation - not a federal official, not a state, not a local government, not an employer - if they receive federal funds. And there were cases imposing such an obligation before Congress overrode those cases with these exemptions. St. Agnes Hosp., Inc. v. Riddick, 748 F. Supp. 319 (D. Md. 1990) (abortion); Taylor v. St. Vincent's Hosp., 369 F. Supp. 948, 949-51 (D. Mont. 1973) (sterilization). The Oregon and Washington laws are a little different, but they too protect people who might otherwise become, or view themselves, as involuntary participants. There is a right to assisted suicide. But no one is obligated to assist. And no one in the system, who might otherwise have power over you, can make you participate. Your employer cannot make you participate. A hospital or hospice cannot make you participate as a condition of having admitting privileges. And where a doctor is willing to assist, the owner of a medical facility gets a veto. Not on my property. These laws act as exemptions from sources of public and private power that might potentially be used to compel participation. It is also true that both sets of laws protect moral convictions whether or not based in what is commonly understood as religion. It is hard to see how broadening the exemption gives it less precedential value. These are cases where one citizen has a legal right, either government or private persons or entities may be in position to compel others to help implement that right, and the persons subject to that potential coercion , both for-profit and not-for-profit, are given a right to refuse to participate on grounds of conscience. And if anyone was unable to find Ore. Rev. Stat. 127885, put a decimal point after 127. It will work much better. 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:* Sunday, February 16, 2014 2:02 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby/Conestoga Wood briefs -- and an historical question On a quick read, it appears that neither of the state assisted suicide statutes is analogous, either. They merely confirm that although entities *can* assist suicides, no one is under any obligation to do so. No need for any exemption at all, since there's no duty in the first place. And thus, not surprisingly, no reference to religion at all, far as I could see. On Sun, Feb 16, 2014 at 1:11 PM, Marty Lederman lederman.ma...@gmail.com wrote: Thanks, Doug, for the cites to the Oregon and Washington statutes, which I
Re: Hobby Lobby/Conestoga Wood briefs -- and an historical question
For what it's worth, I have never endorsed the argument that corporations, for-profit or otherwise, cannot exercise religion and are thus categorically outside the aegis of RFRA. To the contrary, conscience or not, it seems plain to me that either the business or its closely held owners can exercise religion when, e.g, they run a Christian bookshop such as Martel. (For other reasons, I don't think there's a corporate claim of a burden on free exercise here, since for-profit corporations don't have religious obligations of the sort alleged here -- I think the issue is, and ought to be (as the HL brief suggests) whether the law burdens the Hahns and the Greens in their capacity as business *decision-makers. See * http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html.) But that's not the point of my inquiry in this thread or my post today on Balkinization. My point is that for-profit businesses, corporate or not -- and their owners/operators -- *have never been entitled to religious exemptions from generally applicable laws*. That is to say, until this litigation they have never *prevailed* under the FEC or RFRA. On Sun, Feb 16, 2014 at 3:38 PM, Douglas Laycock dlayc...@virginia.eduwrote: One issue is whether we ever protect the conscience of for-profit organizations. We are told they don't have a conscience; they don't believe, pray, worship, etc; they only maximize profits. Well they sometimes do have a conscience, and at least where human life is at stake, we have laws that recognize that claim of conscience and protect it. The other issue is whether any right of conscience can override a legal entitlement vested in a third party. Here the ACA is somewhat different; it imposes the duty to provide the benefit on the employer in particular. The assisted suicide laws do not; the constitutional right to abortion does not. There are no doubt multiple reasons for not imposing any duty on anyone; recognition that there would be widespread objections based on conscience is surely one of the reasons. And protection of conscience is explicitly the reason for not allowing anyone else in the system to impose such a duty. It is less convenient, and sometimes more expensive, for employees to get their contraception elsewhere. It is similarly less convenient, and sometimes more expensive, for your regular medical providers to send you elsewhere for abortion or assisted suicide. Whether this inconvenience and expense gives rise to a compelling interest, or even an Establishment Clause violation, is an issue in the ACA cases. But that issue was raised in the debate over the non-profit regulations too, as the recent thread on Notre Dame illustrates. It is not the same issue as whether we have ever recognized for-profit conscience. 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:* Sunday, February 16, 2014 3:15 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby/Conestoga Wood briefs -- and an historical question I think I'm all apples, Doug. In cases where the government has decided *that commercial actors generally have an obligation that provides benefits across-the-board* -- that the obligation to do X is now an ordinary incident of commercial activity -- legislatures have not, or have rarely, offered a religious exemption to those actors who are religiously motivated. (The Kansas bill Chip cited would be a counterexample that proves the rule, but it appears to be headed for defeat.) But in cases, like the Church Amendment and the Washington and Oregon statutes, where the legislature determines that *no one should have such a duty in the first instance*, there is, of course, no need for a religious* exemption*, because there's no generally applicable rule to which the exemption would apply. The preventive services requirement is of the former sort -- the exemption Hobby Lobby is seeking would deny its women employees a benefit to which virtually all other women in the United States will be entitled. In order to be analogous to 238a, or to the Washington and Oregon statutes, the ACA would have to provide something like this: No health insurance plan shall be required to ignore preexisting conditions, or to cover dependents of participants through age 26, or to include cost-free reimbursement for preventive services such as colorectal cancer screening, immunizations, and women's health services. But in fact, the law provides exactly the opposite: that *all *health insurance plans must include all those things. That's why a religious exemption is being sought here -- because the generally applicable baseline rule is that an insurance plan
Re: Notre Dame-- where's the complicit participation? Sincerity
I may have more to say on this point later, but for now this'll have to suffice: First, Doug may be correct that there is no doubt about what the Church's teaching is about the morality of *contraception use. *But there sure is plenty of doubt, as Eduardo noted, about whether the Church, or Notre Dame, or Notre Dame's leadership, or any serious Catholic student of the doctrine of cooperation with evil, actually believes what ND's lawyers are arguing about an alleged religious prohibition on Notre Dame's actions in exercising the religious accommodation. (Whether and how the courts might inquire into that question is a different matter, of course.) Having said that, I agree with Doug and Mark Scarberry that it would be deeply inappropriate for courts to inquire into the sexual practices of university personnel, because I think it's fair to assume that Notre Dame sincerely believes (as much as an institution can have beliefs) that contraception is (in the words of its Vice President's affidavit) a serious moral wrong. And this would be so even if Marci were correct that many ND officials and administrators themselves use contraception. For one thing, those individuals may consider themselves to be engaged in serious moral wrongs. (As Mark wrote: Consistency is not a requirement of sincerity.) Moreover, even if some such *individuals* disagreed that contraception is a serious moral wrong, their views are not those of the University. On the other hand, it does seem to me relevant that that Notre Dame has *publicly *acted in ways that might be thought to call into question *not *the sincerity of its belief about contraception, but the *depth*, or* substantiality,* of that sincere belief, i.e., how *important* this particular religious commitment is to Notre Dame. (And this is so even before we get to the question of how ND might possibly be complicit in sin.) For example, although ND does instruct its students that they may not have pre-marital sex, the school (quite understandably, and commendably) does little to enforce that rule. Also, as Judge Posner noted, it does not insist that its employees not use contraception. Nor did it even bother to check, for many years, whether its health insurance plans included contraception--it's my understanding (I could be wrong about this) that ND never mentioned to Aetna and Meritain that they should exclude such coverage, and that the issue was never one ND gave much attention to -- until President Obama made it a public issue. Moreover, as Posner also noted, when Meritain last month told ND employees that they may now get reimbursement for contraception through Meritain, Notre Dame apparently did not urge its employees to refrain, or inform them that it would be morally wrong for them to use contraception. And it ungrandfathered its health plans, even knowing that that meant it would be covered by the contraception rule. Again, I don't think these actions call into question ND's sincerity about its view that contraception is a serious moral wrong. And I would not criticize Notre Dame for acting as it has (to the contrary, I think that in some of these cases its forbearance is admirable). But these actions do at least raise a serious question about the relative *depth *of ND's conviction, which should, I think, bear on how *substantial* the burden would be if and when a law regulated the conduct in question. That is to say, although consistency is not a requirement of sincerity, it sure is a good indicator of depth of conviction, and thus of the degree to which the law would affect the person's religious conduct. Shouldn't courts be able to look at how *consistently one acts in accord with one's religious conviction* as a means of determining how substantial the burden is if and when the state places pressure on the person to deviate from that conviction? To be sure, inconsistent conduct might in some cases demonstrate insincerity. But much more frequently, I think, it will demonstrate only that the person in question herself, for whatever reason, does not treat a sincere religious commitment as something deeply important to her. (Like everyone else, for instance, I treat some of my religious convictions much more seriously than others, in the sense that I go to much greater expense and trouble to adhere to them.) And if the person has been unwilling to pay a cost herself in the service of that religious obligation -- if she regularly puts that commitment aside when adherence to it would be modestly costly or inconvenient or inappropriate for other reasons, for example -- shouldn't that have some bearing on whether the state should be required to shift the costs to others in the service of that same religious commitment? On Sun, Feb 16, 2014 at 3:45 PM, Douglas Laycock dlayc...@virginia.eduwrote: No doubt the Board and senior administration speaks for Notre Dame. But on faith and morals, they may (and may be expected to or required to) take
Re: Hobby Lobby/Conestoga Wood briefs -- and an historical question
Yes, sorry if I was not clear: The point of my posts, both here and on the blog, has been to question whether for-profit entities ever have, or should, *prevail*, especially at the expense of third parties such as employees. That is to say: whether the alternative holding in Part III of *Lee* accurately reflected the state of the law, and whether it ought to govern RFRA. On Sun, Feb 16, 2014 at 4:01 PM, Douglas Laycock dlayc...@virginia.eduwrote: Fair enough. But they have been protected by statute. If your original question went more to compelling interest than to for-profit conscience, then I may have misunderstood the question. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Sunday, February 16, 2014 3:52 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Hobby Lobby/Conestoga Wood briefs -- and an historical question For what it's worth, I have never endorsed the argument that corporations, for-profit or otherwise, cannot exercise religion and are thus categorically outside the aegis of RFRA. To the contrary, conscience or not, it seems plain to me that either the business or its closely held owners can exercise religion when, e.g, they run a Christian bookshop such as Martel. (For other reasons, I don't think there's a corporate claim of a burden on free exercise here, since for-profit corporations don't have religious obligations of the sort alleged here -- I think the issue is, and ought to be (as the HL brief suggests) whether the law burdens the Hahns and the Greens in their capacity as business *decision-makers. See * http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html.) But that's not the point of my inquiry in this thread or my post today on Balkinization. My point is that for-profit businesses, corporate or not -- and their owners/operators -- *have never been entitled to religious exemptions from generally applicable laws*. That is to say, until this litigation they have never *prevailed* under the FEC or RFRA. ___ 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: Notre Dame-- where's the complicit participation? Sincerity
I appreciate Marci's support on my other point, but I'm afraid I don't agree that the views of American Catholics writ large is especially relevant. It's no secret that most Catholics, including ND students and faculty, disagree with ND's view, and with the Church's, on the morality of contraception and premarital sex. That's why this is a losing battle for ND in the long run. But I think there can be little doubt but that, as an institution, Notre Dame believes (and at least nominally instructs its students) that such things are indeed sinful. On Sun, Feb 16, 2014 at 4:20 PM, Marci Hamilton hamilto...@aol.com wrote: There is a doubt however about what American Catholics believe. They overwhelmingly reject the church teaching against contraception. They don't think they are sinners as Mark suggested. They reject it. Every poll supports that as does the fact that it is rare to find a Catholic family w 10-20 children in the US. The teaching is one thing: the belief is another in the US. This is not an idle observation. ND has inserted itself into the spotlight by asserting beliefs that most Americans know Catholics reject-in theory and in practice. On Marty's point--the fact that the government gives for-profits a pass on abortion does not show they have a conscience. It shows religious abortion opponents had political clout.Your reasoning strikes me as backward. I think Marty and the SG are on the stronger ground here If the Court finds they have such rights, the slippery slope is perpendicular to the ground. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Feb 16, 2014, at 3:45 PM, Douglas Laycock dlayc...@virginia.edu wrote: No doubt the Board and senior administration speaks for Notre Dame. But on faith and morals, they may (and may be expected to or required to) take their guidance from the bishops. There is no doubt what the Church's teaching is, and no doubt that teaching is sincere. What I said was that Notre Dame's leadership may sincerely feel obliged to follow that teaching in their official capacity as leaders of a Catholic institution, whatever they may do in their private life. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com *Sent:* Sunday, February 16, 2014 3:14 PM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Notre Dame-- where's the complicit participation? Sincerity Is Doug correct as a legal matter that the bishops speak for Notre Dame, as opposed to its officials, and the officials' actions are irrelevant? And that the actions of its co-religionist officials are irrelevant to proof of the organization's beliefs? Why don't the practices of Notre Dame's officials prove insincerity in this case? (I'm assuming that they don't have the 10-20 children typically incident to not using birth control and that they follow the vast majority of American Catholics in rejecting the belief against contraception). How can they claim a right not to provide contraception for their employees/students in their health plan because of complicity if they are using it themselves? To provide an analogy: In the prison cases, you can test a prisoner's sincerity when he demands kosher food (because it's better than the usual fare), and claims a conversion to Judaism, but they find pork rinds in his cell, it is assumed he is not sincere and does not receive the accommodation (a state prison general counsel provided this example for me) Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 ___ 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: Edited Version of Hobby Lobby and/or Not-for Profit Cases for Teaching?
IMHO, the emphasis in the CTA10 opinion, and in the amicus briefs, on whether corporations can exercise religion or have beliefs, is beside the point. (I try to explain why here: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html) If it were me, I'd assign excerpts from the Statements of Facts and the sections on the substantive RFRA questions in the four party briefs thus far filed, and skip the courts of appeals. On Mon, Feb 17, 2014 at 9:36 PM, Robinson, Zoe zrobi...@depaul.edu wrote: All, I will be teaching the Contraception Mandate in class in the next couple of weeks, and before I subject myself to editing down the 10th Circuit opinion in Hobby Lobby, and another opinion in a NFP case from the Contraception Mandate Challenges I thought it worth asking whether anyone has already undertaken this laborious task and, if so, be willing to share your Mandate teaching materials? I can promise my immense gratitude and a packet of Australian cookies in the mail as thanks! Best, Zoe Zoe Robinson Associate Professor of Law DePaul University College of Law 25 E. Jackson Blvd. Chicago, IL 60604 Ph - 312-362-8541 ___ 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.
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-constructions/ 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, then *they will have little choice but to drop their plans.* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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'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 dlayc...@virginia.eduwrote: 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
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 dlayc...@virginia.eduwrote: 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
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 lederman.ma...@gmail.comwrote: 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 dlayc...@virginia.eduwrote: 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
Re: recommended Hobby Lobby posts
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-constructions/ 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, then *they will have little choice but to drop their plans.* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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
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 aebrownst...@ucdavis.eduwrote: 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.
It must not be a compelling interest since there are so many exceptions
Derek writes: 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. Convincing to whom? The claim is spurious. See http://balkin.blogspot.com/2014/01/hobby-lobby-part-iv-myth-of.html On Fri, Feb 21, 2014 at 5:48 PM, Gaubatz, Derek dgaub...@imb.org wrote: 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 --
Re: RLPA history for RLUIPA
Many employers are choosing and will choose to drop or not offer employee health plans. Do you think they think they thus become second class? They still would offer their employees all the benefits but this one -- and higher salaries, to boot, from the money they'd saved. becoming a second class employer is a conclusory label, not supported by any facts, let alone facts sufficient to satisfy Iqbal/Trombley. What's more, even if there were some evidence proferred that *some *observers (who? how many?) would then conclude that HL is a second class employer, that's still not enough to establish substantial pressure to violate one's religious precepts. If a little bad publicity were all it took to coerce Hobby Lobby to offer contraceptive coverage, it would have done so by now, since it sure must have alienated a bunch of actual and potential female employees with the position it's taking. (Please note that I am most assuredly *not *suggesting that Hobby Lobby should have swallowed its beliefs in order to avoid employee bad will. To the contrary. I'm merely suggesting that the prospect of a little bad publicity is hardly enough to exert substantial pressure on the Greens to violate their strongly held beliefs.) On Fri, Feb 21, 2014 at 6:05 PM, Gaubatz, Derek dgaub...@imb.org wrote: We've been down this road before:forcing plaintiffs to choose between abandoning their religious beliefs, paying crippling penalties, or becoming a second-class employer that doesn't offer its employees benefits is a government imposed substantial burden.It's only those employers with religious objections to the abortifacient mandate who face these particular set choices and that set of choices only arises because of the mandate. Employers without religious objections to the abortifacient mandate aren't put to these choices; if they choose to become the second-rate employer who doesn't offer benefits, it's not because they were forced into that choice at the price of abandoning their religious beliefs. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Friday, February 21, 2014 5:26 PM *To:* Law Religion issues for Law Academics *Subject:* Re: RLPA history for RLUIPA Which tax? Hobby Lobby, like any employer, can choose not to offer an employee health care plan if it does not wish to comply with any of the many requirements that apply to all such plans -- or for any other reason, for that matter. If it does so, it will pay a tax assessment to help subsidize the government subsidy on the exchanges . . . but that tax will pale in comparison to the savings it will realize by not having to pay insurance premiums and the costs of plan administration. In any event, the question is not whether Hobby Lobby is burdened at all, but whether federal law imposes a *substantial burden* -- in this case, whether the law substantially pressures HL to retain its plan notwithstanding the religious objection. HL has not pleaded facts to demonstrate that it would be subject to such significant pressure -- it has offered only conclusory statements. On Fri, Feb 21, 2014 at 4:54 PM, Michael Worley mwor...@byulaw.net wrote: Yes, but the tax in and of itself is a burden on Hobby Lobby. On Fri, Feb 21, 2014 at 2:35 PM, Marty Lederman lederman.ma...@gmail.com wrote: Actually, FWIW, Hobby Lobby is not required to provide contraception, or even to provide reimbursement for its purchase. See http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html ___ 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.
Kansas/Arizona statutes protecting for-profit businesses
And a story out of Arizona . . . http://www.nytimes.com/2014/02/22/us/religious-right-in-arizona-cheers-bill-allowing-businesses-to-refuse-to-serve-gays.html?hpwrref=politics Here's the bill (likely to be vetoed): http://www.azleg.gov/legtext/51leg/2r/bills/sb1062s.pdf On Sun, Feb 16, 2014 at 2:46 PM, Marty Lederman lederman.ma...@gmail.comwrote: Not so fast, Chip! The Kansas House passed it, but it appears that the Senate will not do so . . . despite a 32-8 Republican majority! http://www.chicagotribune.com/sns-rt-usa-gaymarriagekansas-20140212,0,4249694,full.story Even in red states, it's incredible how fast hearts and minds are changing . . . On Sun, Feb 16, 2014 at 2:12 PM, Ira Lupu icl...@law.gwu.edu wrote: Look at the new Kansas law on the right of individuals and religious entities to discriminate against those in same sex marriages, domestic partnerships, etc.: http://kslegislature.org/li/b2013_14/measures/documents/hb2453_01_.pdf\ Note the definitions in section 3 (a) which defines religious entity to include a privately-held business . . . (section 3(a)(3)). Perhaps this is the unfortunate wave of the future in red states, preparing for a 14th Amendment obligation to recognize same sex marriage. On Sun, Feb 16, 2014 at 2:01 PM, Marty Lederman lederman.ma...@gmail.com wrote: On a quick read, it appears that neither of the state assisted suicide statutes is analogous, either. They merely confirm that although entities *can* assist suicides, no one is under any obligation to do so. No need for any exemption at all, since there's no duty in the first place. And thus, not surprisingly, no reference to religion at all, far as I could see. ___ 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: It must not be a compelling interest since there are so many exceptions
Derek: The claim you, and the parties, have made is that Congress created myriad exemptions covering millions of women, demonstrating that this interest must not be so compelling, after all. But as it turns out, the only real exemption is just an ordinary phasing-in rule, common to many statutes. For obvious reasons of administrative convenience, Congress basically said to all plans: Here's a series of important changes. Next time you make a major change of your own accord, you must include these, as well. Congress assumed, correctly, that the accession to the new rules would be steady and fairly rapid, as has in fact occurred -- because Congress knew that virtually all plans regularly make the sorts of changes that would trigger the end of grandfathered status. You're right, of course -- Congress could have, but did not, add an outside expiration date, in case a handful of plans failed to make the requisite changes over a more extended period of time. I assume it did not do so because it did not occur to the legislators that that would be much of an issue--they likely expected virtually all plans to make changes in the near future. Can anyone say with a straight face that this failure to add suspenders to the belt was a reflection of the fact that Congress did not really care so much about the preventive services requirement? That it did not view universal immunizations and colorectal cancer screening, for example, as all-that-important? The question answers itself. Congress fully expected *not *that millions of Americans would be left in the dust, but instead that, in relatively short order, *all* Americans would be the beneficiaries of the preventive services protections That was a reasonable expectation, largely borne out by experience. The fact that Congress sought to accomplish this by way of the sort of transition rule that one ordinarily finds in complex statutes surely cannot be the basis for calling into question whether the national government has a compelling interest in the extraordinary benefits that come with preventive care. The other point in my post was not a fallback argument -- it was a different point entirely, related not to the compelling interest side of things but to the question of substantial burden, and it's fairly peripheral to my principal arguments there. I'd be happy to discuss it with anyone who's interested, but It's a distraction from the current thread, and so for now I'd just refer others to the post itself. On Sat, Feb 22, 2014 at 12:04 AM, Gaubatz, Derek dgaub...@imb.org wrote: Marty, it seems to me that one weakness in your argument is that there's a big difference between a grandfather clause that would sunset old plans on a date certain and grandfather clauses that allow old plans to continue on to perpetuity. Here, Congress chose the latter type, which means there is an exemption to the mandate that can continue on into perpetuity. (Although anecdotal, I'm aware of employers with no plans to lose their grandfather status). And it's not like Congress didn't know how to impose some new requirements on grandfathered plans. It did so for some provisions, but it chose not to make these preventive care provisions (like the abortifacient/contraceptive mandate). This undermines the claim that forcing employer plans (like Hobby Lobby) to provide the particular abortifacients to which they object serves an interest of the highest order: Congress ignores this interest into perpetuity for some plans and when presented an opportunity to address that issue, chose not to. Moreover, by your own figures, 36 percent of plans remain grandfathered at the end of 2013. But for the injunction, Hobby Lobby would be paying fines today while 36 percent of plans get to ignore this asserted interest of the highest order. Your fallback argument in your blog post that Hobby Lobby should have kept its grandfathered plan and avoided this whole issue also falls short. Even though you concede that HL ended its grandfathered plan before the abortifacient mandate was even imposed in regulations, you assert that surely HL knew that the mandate was a serious possibility.. This is nothing short of a blame the victim argument: HL should have known that the Administration would ignore RFRA so it should have taken defensive measures to protect itself.I think HL could just have reasonably assumed that the government would have taken an approach to advancing its desired health policy objectives while also being respectful of the substantial number of its citizens who it knew would have religious objections. Grace and peace to you, Derek *From: *Marty Lederman *Sent: *Friday, February 21, 2014 6:22 PM *To: *Law Religion issues for Law Academics *Reply To: *Marty Lederman *Subject: *It must not be a compelling interest since there are so many exceptions Derek writes: The briefs convincingly demonstrates that this doesn't
The Arizona bill and Hobby Lobby
Apologies in advance if someone has already made this connection: If I'm understanding it correctly, the effect of the Arizona bill would be to establish or confirm that the Arizona RFRA *does exactly what Hobby Lobby and its amici are arguing the federal RFRA already does* -- namely, extend protections to for-profit commercial operations. And the Republican establishment, including not only both Senator Flake and Newt Gingrich, but also John McCain, an amicus in *Hobby Lobby*, are strongly lobbying against it. And they are doing so, presumably, because the Arizona bill -- *like the plaintiffs' argument in Hobby Lobby* -- would pave the way for claims of entitlement to religious exemptions from anti-discrimination norms in the commercial setting. I say this not to accuse those Republican officials of hypocrisy -- I'm sure they have not made the association -- but merely to point out that if Hobby Lobby did not involve the incendiary combination of contraception and Obama, it's very unlikely that so many would be arrayed in support of the rule they are asking the Court to announce about RFRA. ___ 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: Final post on discrimination/religious liberty issue
One quibble: In the memo Kagan does not accept the complicity argument full-blown--that is, . . . the idea that a religious landlord might legitimately claim to be morally responsible for the sexual behavior of her tenants and that RFRA is available for such a claim. She doesn't address that issue at all. Instead, she addresses and rejects the view of the court that loss of one's longtime profession is not sufficiently coercive. Some of you may recall that we had this same discussion on this list back in 1999, when (I believe) the Anchorage case was decided. We had a variety of views about the complicity argument. But I think we had a great deal of consensus on the view that threat of losing one's established business could be sufficiently coercive to satisfy that aspect of the substantial burden analysis. On Sun, Mar 2, 2014 at 9:45 PM, Christopher Lund l...@wayne.edu wrote: Justice Elena Kagan once took on the issues we've been wrestling with--RFRA, discrimination, complicity in sexual behavior, and for-profit businesses. The case was *Smith v. FEHC*, and it involved a Christian landlord who refused to rent to an unmarried couple in violation of California law. The landlord was running a for-profit business. But she thought sex outside of marriage was sinful, and believed it sinful for her to facilitate that by renting the couple an apartment. The California Supreme Court said no substantial burden under RFRA. Kagan, then at the White House, wrote a memo forcefully disagreeing and encouraging the Clinton Administration to consider filing for certiorari. Is this distinguishable? Sure it is. This is unmarried couples, not gays and lesbians--and the LGBT community has suffered infinitely more in terms of discrimination and harassment, both private and governmental. Justice Kagan also doesn't take a stand on the ultimate question. She only addresses substantial burden, not compelling interest. But she speaks passionately in favor of the religious landlord. And she accepts the complicity argument full-blown--that is, she accepts the idea that a religious landlord might legitimately claim to be morally responsible for the sexual behavior of her tenants and that RFRA is available for such a claim. She accepts it here, even in the context of a for-profit business. She calls the California Supreme Court's decision plainly outrageous. She goes on to say that the decision could strip RFRA of any real meaning, and speaks of the importance of RFRA's guarantee of religious freedom. I don't know what Justice Kagan thinks about the underlying issues of sexual morality here, but I suspect we see things the same way. I believe gay relationships are of equal morality and dignity as straight relationships; I find premarital sex to be fine. Frankly, I find it these things noncontroversial, almost boringly so. But I recognize that there are people--people very different from me--who see the world differently. And I'm trying to respect that, as Justice Kagan did. Maybe I've done it wrong, but that's what I've been trying to do. There are a lot of good people on the listserv, who see this issue very differently and who are all quite passionate. I have learned a lot from the posts by James Oleske, Jean Dudley, Ira Lupu, Steve Jamar, and Greg Lipper. (Among others that is--I'm not trying to disparage anyone by omission.) Part of what I have enjoyed about this listserv is that it has frequently been a community where folks on different sides of legal issues communicate honestly and respectfully about their positions. I look forward to continuing in that vein. Kagan's memo is here, http://www.volokh.com/wp/wp-content/uploads/2010/06/kagan-religious-freedom-memo.pdf. It's only a page. Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website--http://law.wayne.edu/profile/christopher.lund/ Papers--http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 ___ 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
Re: letter opposing Mississippi RFRA
Obviously, I'm not nearly as sanguine as Doug about the possible effects of Hobby Lobby on all these other cases in the commercial sector. For one thing, the Court's rationale if it rules for Hobby Lobby, on both substantial burden and compelling interest, will not in any way, shape or form reflect the idea that this is a one-off because it arises in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country. What's more, this *isn't* a case in which the government has attempted to override the teachings of two large religious groups. Which teaching is that? To be sure, the regulation reflects the view that contraception is socially valuable, which doesn't override any religious teachings, but which of course is not consistent with them. More to the point, that's certainly not a new position for the federal government to adopt -- it's been a long time since *Griswold *-- nor one that most of the Justices will reject. On Tue, Mar 11, 2014 at 1:09 PM, Douglas Laycock dlayc...@virginia.eduwrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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 *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or 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: letter opposing Mississippi RFRA
To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that *did not involve the commercial sector* -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.comwrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. 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 *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: letter opposing Mississippi RFRA
We've been through this a million times before, so I won't belabor it, but no one is being *required* to provide any drugs to anyone. On Tue, Mar 11, 2014 at 2:27 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: I'm not sure what Greg means, but if the government can override such positions held by politically powerful groups, then what chance will minority religions have? It's also important to see that the Protestants who object do so not because HHS is requiring them to provide contraception, but because they sincerely think the drugs they must provide will sometimes cause abortions. That is a red line for those Protestants and, I think, for many Catholics - a real red line, not like the ones sometimes drawn in international affairs. If the government can force religious people to provide for the obtaining of abortions, then all bets are off. Whether or not you think the contraceptives cause abortion, the arguments that would permit the HHS contraceptive mandate are equally applicable to abortion. I think it was Sandy who warned at AALS of peasants with pitchforks. Let's not go there. 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 *Greg Lipper *Sent:* Tuesday, March 11, 2014 11:05 AM *To:* Law Religion issues for Law Academics *Subject:* Re: letter opposing Mississippi RFRA Yes, indeed. And whatever substantial burden means, it most certainly does not mean - and could not be applied by courts, with a straight face, to mean - burdens with respect to long held and clearly stated teaching of two of the largest religious groups in the country. On Mar 11, 2014, at 1:42 PM, Marty Lederman lederman.ma...@gmail.com wrote: To be fair to Doug and others of us who fought for RFRA and RLPA and RLUIPA way back when, we thought they were worth fighting for because of all manner of cases that *did not involve the commercial sector* -- including, for example, Doug's prisoner case that the Court just granted. Doug is right that no one, back then, thought commercial sector cases could prevail -- because they have virtually never received so much as a vote in the Supreme Court. But that was then; this is now. If Hobby Lobby prevails, and if these state laws are enacted against the backdrop of such a Supreme Court decision and a manifest legislative and popular intent to promote exemptions in the commercial sphere, well . . . that's a different landscape entirely, isn't it? On Tue, Mar 11, 2014 at 1:29 PM, Hillel Y. Levin hillelle...@gmail.com wrote: I'm not sure I understand. If such RFRAs are so ineffectual then why are some people pushing so hard for them? If they aren't worth fighting against, why are they worth fighting for? On Tuesday, March 11, 2014, Douglas Laycock dlayc...@virginia.edu wrote: There is of course nothing in the actual experience of state RFRAs to support any of the speculative fears in the letter. Litigation has been scarce; decisions favoring religious claimants have been scarcer. RFRAs have been significantly under enforced compared to the aspirations of their drafters. The recent string of wins under federal RFRA in the contraception cases arise in a context where government attempted to override long held and clearly stated teaching of two of the largest religious groups in the country (Roman Catholics and evangelical Protestants). Even if those wins hold up in the Supreme Court, which is far from assured, there is little reason to think they would be replicated in other contexts. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu *Sent:* Tuesday, March 11, 2014 12:21 PM *To:* Law Religion issues for Law Academics *Subject:* letter opposing Mississippi RFRA A group of ten legal academics, including myself and a number of others who post on this list, have prepared a letter urging the legislative defeat of a proposed Religious Freedom Restoration Act in Mississippi. The letter has recently been delivered and made publicly available. It can be found here: http://www.thirdway.org/publications/795 -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg -- Hillel Y. Levin Associate Professor University of Georgia School
Re: letter opposing Mississippi RFRA
My take on this question is here, Sandy: http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html In short: Some religious persons believe that a drug or device that prevents implantation of the embryo in the uterine wall is the taking of a life, whether it's called an abortion or not. Such implantation-prevention is not considered an abortion by the medical and scientific communities, or by the law, all of which look to implantation itself as the onset of pregnancy. (This is oversimplifying; but that's the gist.) But this isn't a factual or scientific dispute -- it's a when does life begin? dispute. OK, but here's the rub: None of the 18 FDA-approved contraceptive methods in question are designed to work by preventing implantation and, as far as we know, none of them does so regularly. Plaintiffs have identified four methods -- two IUDs, Plan B and ella -- that *might* prevent implantation in some small number of cases. (The number might be zero, too -- we just don't know.) But there are other methods, as well, such as the most common birth control pill, that *might* do so, as well, in some small number of cases. All of which is to say that, even if one believes that preventing uterine implantation is the taking of a life, plan participants' use of the approved contraceptive methods will, at *most*, have that effect in some tiny (perhaps nonexistent) percentage of cases. Therefore, the objection by the plaintiffs in HL and CW is based on the remote possibility that in some unknown but small number of cases, their companies' employees' use of contraception *might* prevent implantation. On Tue, Mar 11, 2014 at 3:26 PM, Mark R. Killenbeck mkill...@uark.eduwrote: On the science, see the Sharon Begley piece in Reuters, U.S. top court cases highlights unsettled science in contraception, noted by Howard Bashman in How Appealing: http://www.reuters.com/article/2014/03/11/us-usa-court-contraception-analysis-idUSBREA2A07720140311 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Levinson, Sanford V *Sent:* Tuesday, March 11, 2014 2:02 PM *To:* Law Religion issues for Law Academics *Subject:* RE: letter opposing Mississippi RFRA I almost apologize for bringing this up, but I think that a key phrase in Mark's post is they sincerely think the drugs they must provide will sometimes cause abortions. It is not simply Marty's point that they are not being forced to provide them (any more than would be the case, of course, if they were provided through ordinary taxes), but, rather the sincerely think. I am not at all clear why beliefs about empirical matters, albeit sincere, should be dispositive if there is genuine evidence one way or the other. The drugs in question either will or will not sometimes cause abortion. To be sure, there may be a conflict about this, but I fail to be convinced that we should necessarily defer to a small minority of outliers in the scientific community. If we're not talking about outliers, of course, that's a different matter. I take it that the current trial in Michigan is very much about the deference to be paid outliers. (I am fully aware, of course, that occasional outliers turn out to be correct, ahead of their time in battling conventional wisdom. But I suspect that such success stories are few and far between and that most outliers are more likely to be cranks or ideologues. (Consider someone who believes we have a significantly defective Constitution, and that we need a new constitutional convention to correct the problems J) Things get much more complicated when we leave the realm of empirics, as in the sincere belief that one will be condemned to hell if he/she violates certain tenets of a faith. I have argued several times in earlier postings that I would personally restrict RFRA to that category of sincere belief and not simply a conscientious desire to adhere to given religious doctrines that don't carry sanctions for disobedience. Or, to be more precise, I continue to find totally inexplicable the differentiation between religious views and those based on conscientious secular notions drawn from Kant or any similar source. sandy ___ 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
Re: letter opposing Mississippi RFRA
Except that the employer is not involved in determining the range of benefits any more than it determines the minimum wage-- the preventive services are required by law to be in all plans. Sent from my iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ 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: letter opposing Mississippi RFRA
The employer does not earmark any benefits as being for contraception. (Indeed, not even the plan does so.) Nor does the employer purchase contraception. An employer that does not offer a health care plan will pay its employees more in wages. (It's all a form of compensation for labor.) Those employees will inevitably use those extra wages for health care, including contraception. An employer may choose, however, to replace some of those wages with a health insurance plan -- a substitute form of compensation. Of course, an employee who receives this alternative form of compensation cannot use it for anything under the sun -- not baseball tickets, not hamburgers. But she can purchase tens or hundreds of thousands of different medical services, of which contraception is a small subset. And she'll be reimbursed for those medical services by the plan, whichever she happens to use. *The employee *decides what to earmark, just as she does with wages -- she simply has a somewhat less unlimited, yet still vast, set of choices. On Tue, Mar 11, 2014 at 10:35 PM, Douglas Laycock dlayc...@virginia.eduwrote: The line is between benefits that are earmarked for a particular item and wages that are not. It is between what the employer purchases himself, and what the employee purchases. First you wildly exaggerate their claim, then you say that the exaggerated claim is ridiculous, then you infer that the actual claim is also ridiculous. Which is not to say that some of the people on the religious fringes, both left and right, don't make wildly exaggerated claims. But no religious claimant has ever won on a claim about the use of money paid over without restriction to someone else. The only claim of that sort I can think of is claims about paying taxes that the government then spends for immoral purposes. Zero for however many times they have tried. On Tue, 11 Mar 2014 22:17:40 -0400 Steven Jamar stevenja...@gmail.com wrote: Still complicit--the employer knows the wages will sometimes be spent on things the employer dislikes just as much as the employer knows some employees will use insurance for things the employer dislikes. If the theory is complicity, that line is a pretty lame one. Sent from Steve's iPhone On Mar 11, 2014, at 9:26 PM, Brad Pardee bp51...@windstream.net wrote: Because the employee's paycheck is a blank check. The employee can do whatever they want with it because, as part of the salary, there are no limits on what the employee can or can't spend the money on. However, insurance is not a blank check. The policy specifies what it is covering and what it is not covering and the employer, in determining the range of the benefits they offer, is fully involved in the decision of what is being covered and is fully accountable to his or her God for that decision. Brad From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Hillel Y. Levin Sent: Tuesday, March 11, 2014 7:36 PM To: Law Religion issues for Law Academics Subject: Re: letter opposing Mississippi RFRA I have a question for those who have religious beliefs opposed to the contraception mandate. I do not mean this question as a provocation, but rather in the interest of helping me to understand the problem. Suppose a religious employer knows with 100% certainty that an employee will spend a small amount of her income on contraception. I take it that this does not violate a religious belief. How is that different from directing a percentage of the employee's salary towards health insurance, which will cover contraception? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message 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
Re: Hobby Lobby and Abortion
Thanks very much, Tom and Jim, for teeing up these issues. A few points about the abortion angle, most of which I discussed in further detail back in December ( http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html : 1. Preventing implantation is not considered an abortion under the law, and in the mainstream medical and scientific communities. 2. I emphatically *agree*, however (as I explained in my December post), that that does not matter for purposes of the RFRA claims in these cases since, whatever nomenclature one might use, a small number of persons and religions (including the plaintiffs here) think that preventing implantation ends a life, that *deliberately* doing so is immoral, and that some level or type of complicity with such immoral conduct is itself immoral. 3. None of the 18 FDA-approved methods is designed to prevent implantation, and it's unclear that any of them actually does so. Moreover, those that do (if any) may do so only very rarely. 4. It is true that, according to the FDA, the four methods named in the HL complaint -- two IUDs, ella and Plan B -- *may* prevent implantation in a small number of cases. But . . . 5. So, too, might several other of the 18 methods, including, most significantly, the birth-control pill. Thus, even on the plaintiffs' own theories, the HL and CW cases are not limited to four methods -- the exemption would be of unknown breadth. 6. In the vast majority of cases in which their employees would be reimbursed for the purchase of contraception if the Court denies the HL and CW RFRA claims -- perhaps *all *of the cases (we just don't know) -- there would not be any prevention of implantation, and thus no ending of life on anyone's view, and thus no complicity issue. 7. Assuming there are a small number of cases that result in implantation, that will virtually never be the *object *of the employees' use of the birth control, which obviously would be at least relevant to the moral calculus for many, even if not all, persons who think that implantation ends a life. 8. Thus, even on the Greens' view of implantation and life, *and *their idiosyncratic view of complicity, excluding four or more FDA-approved methods from their plans will deny women their right to cost-free access in a huge number of cases (perhaps all of them) where there would not be any sin, let alone complicity . . . and would, at most, prevent the alleged complicity in a tiny handful of (unidentifiable) cases. I am *not *here making any argument about how that fact should bear on the substantial burden analysis -- a complicated question that neither I or anyone else (to my knowledge) has yet written on. But I do think that comparison, that ratio, fairly identifies the problem that the cases present. 9. The Court is, in any event, unlikely to issue a ruling limited to possible implantation-prevention methods. The scope of such a ruling would be unclear, for one thing, since (as mentioned above) we don't even know what subset of the FDA methods would be covered. More importantly, such a ruling would do nothing to decide the vast majority of the cases that have been filed, which deal with contraception as such, and are not focused on possible implantation-prevention. I doubt the Justices are inclined to issue such a narrow and ineffective ruling. 10. *On the other hand*, and as long as we're on the subject of preventing abortions, one of the principal benefits of the HHS Rule -- as the Guttmacher brief explains (see pp. 23-25) -- is that it will dramatically decrease the incidence of what *everyone *agrees are abortions (the result in 40% of unintended pregnancies). And in a substantially greater number of cases than that, the Rule will spare women being confronted with the decision whether or not to have abortion -- a choice that can be agonizing for many employees with strong religious or other moral views about abortion. As Walter Dellinger wrote in the Guttmacher brief: In these cases, the shifting of a burden to third parties would involve even more than economics and personal health, as significant as they are. Denying coverage of the most effective methods (or, in some cases, all methods) of contraception leads predictably and directly to unintended pregnancies. Removing the contraceptive coverage guarantee would place some women with religious objections to abortion in what is for them a morally difficult position: they might desire but be unable to afford the most reliable methods of contraception and therefore be at increased risk for confronting an unintended pregnancy and the difficult decisions that ensue. For all women, denying practical access to the method of contraception that is right for their health and life circumstances and the well-being of their families can represent a most serious incursion into their individual moral autonomy and the course of their lives. It seems to me, therefore, that for Justices and others who
Re: Hobby Lobby transcript
pay for insurance coverage that could easily be provided by the government or other private entities (insurers). Clement explicitly distinguishes this case from cases involving religious objections to anti-discrimination laws because the government cannot mitigate the harms to third parties if accommodations to such laws are granted. If the Court accepts that argument in its opinion, the door would be open for for-profit, privately held businesses to assert RFRA claims, but the opinion would say little to encourage claimants to believe that they would succeed on the merits in such lawsuits when there is harm to third parties that cannot be avoided by alternative regulatory approaches -- which is the case when anti-discrimination laws are at issue. Alan -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [ lederman.ma...@gmail.com] *Sent:* Tuesday, March 25, 2014 1:19 PM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf Audio should be available later in the week. I'd be curious to hear what others who attended thought of the argument. I'll mention only three things of particular note: First, several of the Justices, including Justice Kennedy, appeared to be at least somewhat sympathetic to the argument I've been stressing that the employers' religion might not be substantially burdened because they have the option of not offering a plan (which might well save them money). Second, there appeared by the end of the argument to be a very real possibility of a judgment that the government must advance its interests through the less restrictive means of offering its secondary accommodation (payment required of the issuer or the TPA) to for-profit corporations, as well. This idea seemed to have traction with Justices of varying perspectives, and neither advocate resisted it much -- indeed, Paul Clement appeared to go out of his way in rebuttal to encourage it, and to stress that he had hinted at it on page 58 of the Hobby Lobby brief. Third, Justices Alito and Scalia tried to argue that RFRA goes much further than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there are five votes for that. ___ 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: FW: Religious Exemption From Vaccination Policy Requires Acceptance of Secular Reasons As Well
Well, the opinion is a complete mess, and might not best be read as a constitutional decision at all. It does, however, suggest a lurking interesting question about religious accommodations and vaccinations, albeit one not raised by this case. This is an unemployment compensation case involving a private employer. For the most part, the opinion appears to be a straightforward APA-like arbitrary and capricious decision, not implicating any constitutional decision. The rationale is that the religious accommodation undermined the employer's stated health objective for imposing the vaccination requirement, and therefore there was no good reason for insisting upon the vaccination (and thus no legal grounds for firing the plaintiff, thereby entitling her to unemployment compensation). The opinion ends with this holding: The record is uncontroverted that the employer did not produce evidence showing appellant's refusal to comply with its flu vaccination policy for purely secular reasons adversely impacted the hospital or otherwise undermined appellant's ability to perform her job as a nurse. Now, this is, of course, nuts. I think it might be a function of the fact that the employer did not appear in the case--only the state board of unemployment compensation did. But if, in the underlying unemployment compensation proceedings, the hospital couldn't come up with any evidence of adverse impact of the nurse's refusal to be immunized, it needs to hire better lawyers (or administrators). To be sure, the religious exemption *does *undermine the efficacy of the vaccination requirement somewhat. But presumably it doesn't blow it to smithereens, or render it futile -- the patients are still *more likely* not to contract the flu if most (even if not all) employees are vaccinated. In the midst of all this misbegotten Ad Law stuff, however, the court interjects two constitutional bits: The first is an unadorned sentence suggesting a free speech violation *by the unemployment compensation board. *(The hospital, recall, is a private employer.) The refusal of the board to give benefits to the secular objector, writes the court, unconstitutionally violated appellant's freedom of expression by endorsing the employer's religion-based exemption to its flu vaccination policy. There's no analysis here, and this is, of course, even less coherent or justifiable than the arbitrary and capricious holding. Then there's the penultimate paragraph, just before the arbitrary and capricious one quoted above. It sounds in the Establishment Clause: Our Supreme Court has clearly cautioned that [g]overnment may not, under the First Amendment, prefer one religion over another or religion over non-religion but must remain neutral on both scores. Marsa v. Wernik, 86 N.J. 232, 245 (1981) (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216, 83 S. Ct. 1560, 1568, 10 L. Ed. 2d 844, 855 (1963)). Under these circumstances, by denying appellant's application to receive unemployment benefits based only on her unwillingness to submit to the employer's religion-based policy, the Board violated appellant's rights under the First Amendment. This, too, is a mess, for a host of reasons: The hospital's vaccination requirement is not religion-based. The Board did not prefer religion over non-religion -- it would have also denied benefits to a religiously motivated employee who was fired by an employer for not being immunized. The only authority cited has nothing to do with this sort of case-- *Marsa* was actually a *Town of Greece* precursor that allowed a borough council member to make a pre-meeting invocation! And *Schempp*, of course, involved the state's own religious expression. Etc. So I'd suggest we ignore this decision itself--nothing good can come of it. But here's the interesting lurking question: Assume that a *state* actor, such as a legislature or a state employer, granted a religious-only exemption to a vaccination requirement. This actually happens quite frequently under state laws. In my view this is an Establishment Clause violation, because of the harm to third parties. The interesting question is who can sue to complain about it. A member of the public or a student at school who may be exposed to unimmunized religious objectors? (Probably standing problems, at least in federal court.) What about a secular objector who complains that the state cannot discriminate against her non-religious reasons for wanting the exemption -- a *Texas Monthly*-like case, in other words, but without the Free Speech/Free Press overlay? The irony in such a case is that extending the exemption to secular objectors eliminates the Establishment Clause problem -- that's why some legislatures have done it! -- while at the same time further further undermining the underlying health reason for the vaccination requirement. Should the secular objector be able to prevail in that case, relying principally on the harm to third parties
Re: Simple Hobby Lobby question
I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in *their capacities as company directors*. I think the Court will vote 9-0 on the question of whether *someone* can sue under RFRA in these circumstances. (I think that someone ought to be the Greens and Hahns in their director capacities; but whatever the theory, I doubt any Justice will vote to throw out the cases at the threshold.) The real question at stake in the cases is whether actors in the commercial sphere (corporate or not) should ever be able to prevail on the merits when granting them a religious exemption would mean significantly burdening third parties (competitors, customers, or, as here, employees). The answer to *that *question has been a resounding no for virtually the entire history of FEC/RFRA jurisprudence, going back 70 years. It's that tradition that is at stake. I have a bunch of posts on these and related questions if anyone's interested: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html On the points discussed immediately above, see, e.g.: http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html http://balkin.blogspot.com/2014/03/hobby-lobby-part-xiii-shareholder.html http://www.scotusblog.com/2014/02/symposium-how-to-understand-hobby-lobby/ http://balkin.blogspot.com/2014/03/hobby-lobby-part-xi-governor-brewers.html On Mon, Jun 9, 2014 at 1:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Ah. Silly me. Thank you. On Mon, Jun 9, 2014 at 1:18 PM, Greg Lipper lip...@au.org wrote: The question isn’t only whether Hobby Lobby (and other for-profit corporations that sell secular goods/services) are persons, but rather whether they are persons that “exercise religion.” If they are not exercising religion, then RFRA is not triggered, no matter how much personhood they have. On Jun 9, 2014, at 12:39 PM, Hillel Y. Levin hillelle...@gmail.com wrote: Why doesn't 1 USC sec. 1 resolve the first-stage question in Hobby Lobby (whether RFRA applies to corporations)? [T]he words “person” and “whoever” include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals. Are the two sides really just arguing about whether [RFRA's] context indicates otherwise (1 USC 1) sufficiently to overcome this strong definitional statement? If so, much as I'd personally like for Hobby Lobby to lose this case, I'd think that the on this question at least, the plaintiffs have to win. After all, we have a strong statutory definition, with at best equivocal contextual evidence to the contrary. What am I missing? Are there cases dealing with the context language in 1 USC 1? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ 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
Re: Divisiveness
My understanding is that that IRS reg is not about the option of declining to offer a plan at all -- something that I'd think the statute guarantees and that the executive cannot change -- but instead about whether certain employer-employee arrangements for health care costs are excludable from income. The IRS Notice is here: http://www.irs.gov/pub/irs-drop/n-13-54.pdf For the life of me, I don't understand much of it, and would be grateful if any of you can translate it into English. On Tue, Jun 10, 2014 at 1:33 PM, Arthur Spitzer artspit...@gmail.com wrote: Marty- Like you, I had thought that the law doesn't require HL to offer an employee health insurance plan at all, and that that was an escape hatch from its claimed religious problem. But from a recent news article it looks like employers no longer have that option, as a realistic matter: http://www.nytimes.com/2014/05/26/us/irs-bars-employers-from-dumping-workers-into-health-exchanges.html?_r=0 WASHINGTON — Many employers had thought they could shift health costs to the government by sending their employees to a health insurance exchange with a tax-free contribution of cash to help pay premiums, but the Obama administration has squelched the idea in a new ruling. Such arrangements do not satisfy the health care law http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/health_insurance_and_managed_care/health_care_reform/index.html?inline=nyt-classifier, the administration said, and employers may be subject to a tax penalty of $100 a day — or $36,500 a year — for each employee who goes into the individual marketplace. The ruling this month, by the Internal Revenue Service http://topics.nytimes.com/top/reference/timestopics/organizations/i/internal_revenue_service/index.html?inline=nyt-org, blocks any wholesale move by employers to dump employees into the exchanges. Am I missing something? Art Spitzer *Warning* *: this message is subject to monitoring by the NSA.* On Tue, Jun 10, 2014 at 1:05 PM, Marty Lederman lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire
Re: Divisiveness
I didn't say that the Greens are not potentially burden as company directors -- indeed, that's exactly what I've argued the case is about, rather than being about corporate free exercise or shareholder rights: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 2:17 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: The just like wages characterization is highly contested and, at least if pushed to its logical conclusion, unsustainable. As to the shareholder issue, almost everyone these days owns property through trusts; anyone who has substantial assets and wants to avoid probate will do so. So it's not surprising that the Greens are not personally shareholders but rather trustees of the trusts that hold the shares (if I understand the facts correctly). Their rights are implicated as beneficial owners and as controlling persons, by way of their being trustees of their family trust and also officers and directors who personally take actions on behalf of the corporation. As for them not being required to provide the coverage they object to, because they can just leave their employees out in the Obamacare cold, and pay a fine, there is a strong argument that the law still creates a substantial burden. I think we've discussed that issue at length. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 10, 2014, at 10:09 AM, Marty Lederman lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create
Re: Divisiveness
?inline=nyt-org, blocks any wholesale move by employers to dump employees into the exchanges. Am I missing something? Art Spitzer *Warning* *: this message is subject to monitoring by the NSA. * On Tue, Jun 10, 2014 at 1:05 PM, Marty Lederman lederman.ma...@gmail.com wrote: I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. On Tue, Jun 10, 2014 at 12:55 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Jon, I think you don't understand, or are ignoring, the point of view of the Hobby Lobby parties. They don't object to employees buying what the Hobby Lobby parties consider to be abortifacient drugs. I don't think they monitor what their employees do with wages or would take any action against employees who buy or use such drugs. They object to being required themselves to take an action specifically related to abortion -- buying insurance that specifically covers the drugs. You might object to buying a gun for an employee, even though the recipient would be the one who uses it. You might, if you were a pacifist, object to being drafted to serve as an army medic or supply clerk, even though you would not be killing anyone but merely be advancing the army's operations. I understand that some people object to this characterization, but it doesn't move the discussion forward to just assume that it isn't the position taken by the objectors in Hobby Lobby. Mark Mark S. Scarberry Pepperdine University School of Law Sent from my iPad On Jun 9, 2014, at 2:35 PM, mallamud malla...@camden.rutgers.edu wrote: There is some authority for not preferring religion over non-religion. I do not think religious people should get exemptions reasons not connected to the practice of their religion (church services, prayer, lighting candles, sacrificing chickens etc.) To me many requests sound like I think it is wrong for religious reasons and therefore other people should not engage in that behavior. E.g. I will not pay my taxes because taxes pay for killing people. No one is asking the owners of Hobby Lobby to engage in activities that they believe offend their religion; they are seeking not to pay employees in such a way that certain contraceptives would be covered. The decision to use or not use the contraceptives is the employees'. One difficulty is that the courts are loath to inquire into to the closeness of the connection of the claim to the religious belief. But without limits exemptions will become legion. Exemptions usually involve some unfairness. That would be mitigated if religious exemptions were limited to the actual practice of religion rather than attempts to impose beliefs on others through refusing to comply with general laws. Smith is a good example and, as we know, does not stop you from sacrificing chickens because people in the community are offended. Take it outside the church or home and give exemptions to general laws and that will create problems if the exemptions become wide enough to make it seem that religious folks have general privileges in society that secular folks do not. Cf. Affirmative action. I noted previously Scalia's citation (in during oral argument) of the overwhelming majority extending the VRA as evidence that the law was not carefully considered. During RFRA's passage and thereafter I focused on conservatives articulating the issue as one in which the Supreme Court disrespected religion, and those on the other side of the spectrum articulated the Smith decision as having disrespected constitutional rights. From discussion about Scalia with lawyers and non-lawyers, I cannot help thinking that a dislike of Scalia contributed to one side's support of RFRA. Jon On 2014-06-09 17:00, Steven Jamar wrote: “nones”? Huh. I knew that was a thing, but didn’t really expect to see it here. Steve On Jun 9, 2014, at 4:49 PM, mallamud malla...@camden.rutgers.edu wrote: I agree with Alan's statement below, stated better than I did. I would add that we now do/should include the nones within the system
Request for suggestions on Religion Law casebook and/or syllabus
I'm teaching the law of religion this fall, after several years away from the survey course. Has anyone here had a great deal of success with any particular casebook? (I usually assign full opinions, but am open to using a casebook if there's a superlative one out there.) And do any of you have syllabi that you thought were especially fruitful and that you might be willing to share? I'm sure others on the list would be interested in hearing your recommendations; but please feel free to contact me directly if that's your preference, too. Thanks in advance, Marty ___ 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: Simple Hobby Lobby question
Lord knows Doug and I have plenty of differences on this case, but on this one we agree, at least roughly speaking. The directors may have a duty to act in the corporations' interests . . . but they are also the ones here who decide what those interests are. There are no stockholders to whom they owe a fiduciary duty. Accordingly, if they freely chose to run the corporation in a way that violated their own religious tenets, well, then, they would have violated their religious tenets. The real problem in this respect for the Greens is that they have few if any decisions to make here -- the preventive services are required *by law* if the Greens choose for HL to offer an employee insurance plan. However, as I've been stressing, they *do* have to decide whether HL will provide a health plan at all . . . and *that *decision might implicate their perceived religious obligations. More to this effect toward the end of my post: http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html On Tue, Jun 10, 2014 at 10:23 PM, Douglas Laycock dlayc...@virginia.edu wrote: The thoughts below may well be right for a corporation with religiously diverse ownership. But Hobby Lobby is closely held, with a voting trust created in part to ensure that the business would be run consistently with the family's religious commitments. In public opinion, and often in law, we hold controlling shareholders morally and often legally responsible for the wrongdoing of the corporation. It is hardly unusual or counter normative for the Greens to feel morally responsible for what they do with the corporation's money. If their bookstore affiliate were selling child porn instead of Christian books, we would hardly excuse the owners who made all the decisions for the corporation on the ground that it wasn't them that did it, it was the corporation. On Wed, 11 Jun 2014 00:53:05 + Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Surely directors have a fiduciary duty as a matter of state law to set aside their personal beliefs and act in the interests of the corporation – not their own souls – according to their best professional judgment. It would be strange indeed to discover that the First Amendment nationalizes and constitutionalizes basic aspects of corporate law, barring corporate law from requiring directors to act as fiduciaries. It would be stranger still to discover that directors have a right to spend money that is not theirs -- wealth that was created by the work of the employees mixed with the capital of shareholders, lenders and past employee work – for their own purposes rather than the corporations. That’s theft. Does the First Amendment really protect theft? Directors act for the corporation. If the corporation cannot exercise religion, they have no right to cause it to spend (or not spend) money or violate otherwise applicable law in order to practice their personal religions. On the other hand, if the corporation can exercise religion, they have an obligation to cause it to do so whenever it is in its interest to do so – which, I suppose, means whenever in their professional judgment doing so would protect its soul, or if it has no soul, whenever its earthly interests will be furthered by religious practice. Moreover, if the First Amendment protects the corporation’s religious rights, ordinary corporate law suggests that the directors are obliged to cause it to practice whatever religion will result in promoting those interests. This might mean, for example, choosing the religion that maximizes profit in some sense, or that promotes the corporation’s product. Directors have a great deal of freedom to determine what the corporation’s interests are. But as a matter of corporate law, they have no right to substitute their own values for its interests. Again, it seems bizarre to hold that the First Amendment protection of freedom of religion protects directors in their fiduciary role: by assuming the role of fiduciary, they have given up their freedom to act according to their personal consciences. Switching the analysis to RFRA helps slightly – at least corporate law does not become a part of First Amendment law. But it is still quite implausible that the Congress meant to nationalize a traditionally state law area without explicit consideration of the implications. From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, June 09, 2014 5:52 PM To: Law Religion issues for Law Academics Subject: Re: Simple Hobby Lobby question I actually think the can corporations exercise religion? question is a red herring. As is the shareholder right-to-sue question. The gist of the claims in these cases are that the individual plaintiffs, the Hanhs and the Greens, have had their religious exercise burdened in their capacities as company directors. I think the Court will vote 9-0 on the question of whether
Re: Divisiveness
Can't stress this too often, apparently, since it doesn't seem to take hold: The alleged burden here is *not *about the expenditure of money; it's about the choices. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html On Tue, Jun 10, 2014 at 9:40 PM, Daniel J. Greenwood daniel.greenw...@hofstra.edu wrote: Even if the Greens are shareholders or beneficiaries of a trust that holds the shares, they aren’t buying anything. The funds used to purchase the insurance belong either to the corporation or its employees, depending on whether one is thinking about the moment before or after the employment contract (assuming that employment is at will, and subject to renegotiation at any moment, either view is plausible). Similarly, if the corporation fails to purchase the insurance, the corporation, not the Greens, will be required to pay an assessment to partially offset the exchange subsidies. The corporation’s money is not the Greens’ money. Corporate funds do not belong to shareholders, let alone beneficiaries of a trust that owns shares (if they are the trust’s beneficiaries). To act otherwise is a gross violation of ordinary corporate law – basically, theft. Shareholders have no claim to corporate assets unless the directors properly declare a dividend or dissolve the firm, and directors may take either of those actions only in furtherance of the corporation’s interests and after assuring that other, more senior, claimants to corporate assets (such as the employees and the IRS) have had their claims met. Surely Freedom of Religion does not extend to protecting religiously motivated expropriation. (And if it does, we can expect some interesting revelations in the near future.) The issue here is the rights of the corporation, not its directors or shareholders or beneficiaries of a trust holding shares. The human beings have too attenuated a claim on the corporation’s assets for their rights to be at issue when it spends, or is compelled to spend, money. *From:* Marty Lederman [mailto:lederman.ma...@gmail.com] *Sent:* Tuesday, June 10, 2014 1:05 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Divisiveness I agree with Mark's correction that the complaint of the Greens is not that their employees' use of contraceptive burdens their religion. But it's also not that they have to buy insurance that specifically covers the drugs. For thing, the law doesn't require HL to offer an employee health insurance plan at all. For another, the Greens aren't shareholders, and therefore aren't buying anything. Hobby Lobby, Inc. --as opposed to the Greens-- is contracting for an insurance plan -- but of course that plan is not made available to their employees gratis; it is a part of their compensation package, provided in exchange for their labor, just like wages. The nature of the way in which the Greens are alleged to be required to act in violation of any religious obligations, therefore, is not at all obvious. ___ 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.
Two more Hobby Lobby posts
I'm under no illusion that such things could possibly have any influence on the Court at this late date (majority opinions having been in circulation for at least two weeks now), but thought it might be worth posting two further entries on Hobby Lobby, in anticipation of the decision: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xiv-how-this-weeks.html http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html The first is more about the Sixth Circuit's nonprofit decision from earlier this week; the second is about my pet there is no employer mandate argument -- how the Justices treated it at oral argument, and how a new SP Report might bear on it. Many of you will recognize much of these as derived from our discussions here, for which I'm very grateful. ___ 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: Two more Hobby Lobby posts
Thanks for that extremely thoughtful response, Alan. I think you're onto something important: I imagine that even if the SP report is correct, and many employers will drop their health care plans in the coming years, there is a definite first mover phenomenon at work -- that is to say, the main reason any employer would be reluctant to drop its plan just now is precisely that there are too many uncertainties and it wishes to avoid any risks, and is therefore waiting to see what, e.g., its competitors will do. That is entirely understandable employer behavior. The question, however, is why the female employees of that employer should suffer the consequences if the employer opts not to take that chance just now, but opts instead to wait-and-see. If the mere *chance* of some marginal disadvantage in the relevant labor market -- a disadvantage, I should add, that may very well not result in any significant competitive disadvantage, assuming (as I think is probably fair) that the labor pool for arts supplies stores is fairly elastic -- is more important to the Greens than their alleged complicity with employees' use of contraception, then it's not obvious to me why the state should afford them an exemption that will redound to the significant detriment of their employees. On Sun, Jun 15, 2014 at 5:59 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: One issue underlying Marty's very effectively presented argument about the absence of an employer mandate is what counts as the kind of substantial burden that warrants legal attention. Marty suggests that plaintiffs in Hobby Lobby need specific allegations and ultimately some direct proof to demonstrate adverse labor consequences or other economic costs that would result from Hobby Lobby dropping health care coverage for its employees. It may be however that these costs and consequences will be difficult to determine with any degree of certainty for the foreseeable future. How then should a court evaluate a religious liberty claim in light of this kind of indeterminacy? One possibility is to insist on proof by a preponderance of the evidence that Hobby Lobby's current employees would leave Hobby Lobby for other jobs and/or that prospective employees would be less likely to seek employment from Hobby Lobby. Another possibility is ask whether a reasonable employer would foresee serious labor problems or other economic costs if it dropped current health care coverage for its employees. This argument suggests that risk of harm can constitute a substantial burden. There is certainly language in the Town of Greece plurality opinion which suggests that substantial, specific evidence is necessary to demonstrate a legally cognizable burden on religious liberty. But there is also language that suggests that the Court might ask what a reasonable employer might foresee to be the consequences of dropping health care coverage. If the Court adopts that approach, the controlling question would be what understanding of social reality would the Court utilize in determining the reasonableness of Hobby Lobby's concerns. As Marty's post implies, in the real world there may be legitimate arguments to be raised and evaluated on both sides of this question. If Town of Greece is any guide, however, we should expect the Court to imagine a social reality which enables it to reach a conclusion consistent with the ideological predispositions of the Justices -- without regard to whether that imaginary world bears any resemblance to the world in which people actually live, make business decision, and exercise religion. Alan Brownstein -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [ lederman.ma...@gmail.com] *Sent:* Sunday, June 15, 2014 2:04 PM *To:* Law Religion issues for Law Academics *Subject:* Two more Hobby Lobby posts I'm under no illusion that such things could possibly have any influence on the Court at this late date (majority opinions having been in circulation for at least two weeks now), but thought it might be worth posting two further entries on Hobby Lobby, in anticipation of the decision: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xiv-how-this-weeks.html http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html The first is more about the Sixth Circuit's nonprofit decision from earlier this week; the second is about my pet there is no employer mandate argument -- how the Justices treated it at oral argument, and how a new SP Report might bear on it. Many of you will recognize much of these as derived from our discussions here, for which I'm very grateful. ___ 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
Cert. denied in Elmbrook Schools
Scalia and Thomas dissenting: http://www.supremecourt.gov/orders/courtorders/061614zor_2b8e.pdf ___ 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.
Hobby Lobby clarification (re: timing of opinion)
I've been asked by some list-members whether I had any inside information about the case, based upon my comment below that majority opinions had been in circulation for at least two weeks as of June 15. Short answer: No, I don't have any inside information, and never have. That comment was simply based on the modern practice of the Court, in which (reportedly) Justices are expected to have all majority opinions circulated before June. There are only four cases outstanding. Hobby Lobby will almost certainly be issued tomorrow or Monday, and the odds are very high, IMHO, that the Chief is writing the lead opinion. (And no, I don't have any inside info on that, either!) On Sun, Jun 15, 2014 at 5:04 PM, Marty Lederman lederman.ma...@gmail.com wrote: I'm under no illusion that such things could possibly have any influence on the Court at this late date (majority opinions having been in circulation for at least two weeks now), but thought it might be worth posting two further entries on Hobby Lobby, in anticipation of the decision: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xiv-how-this-weeks.html http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html The first is more about the Sixth Circuit's nonprofit decision from earlier this week; the second is about my pet there is no employer mandate argument -- how the Justices treated it at oral argument, and how a new SP Report might bear on it. Many of you will recognize much of these as derived from our discussions here, for which I'm very grateful. ___ 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.
Out on a Hobby Lobby limb -- last-minute speculations
http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvi-half-dozen.html * Hobby Lobby Part XVI -- A half-dozen possibilities that shouldn't surprise you in today's decision * Marty Lederman The Supreme Court will almost certainly issue its decision in *Burwell v. Hobby Lobby* this morning (at about 10:15). The Chief Justice likely assigned himself the lead opinion at conference back in March. Here are six possibilities that you might not have considered concerning the decision. I am *not *predicting that all of them will come to pass--indeed, perhaps none will. But each of them is distinctly possible (I'd say that Nos. 1 and 3 are probable), and none should come as a surprise: *1. * *The Court unanimously rejects the government's threshold argument that none of the plaintiffs can sue under RFRA*. This is the basic question that has dominated debate in the lower courts. But for reasons I explained here http://balkin.blogspot.com/2014/01/hobby-lobby-part-v-whose-religious.html, I think it very likely that there will be few, if any, Justices who conclude that the suits should be tossed out without reaching the merits. *2. * *The Court does not resolve the question of whether for-profit corporations can exercise religion*. As I've discussed in several posts (such as this one http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html), this is not the most propitious case for the Court to examine this abstract question, which has dominated public discussion. Indeed, the Court might never have to resolve it. The much easier and more appropriate route for the Court would be to hold that it is the individual corporate directors -- the Greens in *Hobby Lobby*; the Hahns in *Conestoga Wood *-- who can bring RFRA suits, since if the federal law here burdens anyone's exercise of religion by requiring or coercing violation of religious obligations, it is the obligations asserted by those individuals acting in their capacity as corporate decision-makers (not shareholders). *3.* *The Court holds that there is no employer mandate and that federal law does not require the corporations to provide insurance coverage for contraceptive services*. Those of you who have been reading along with my posts will recognize this argument. As I explained recently http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html, the remarks of several Justices (including the Chief Justice) at oral argument in March suggested that most if not all of the Justices may reject the factual premise that every court of appeals has assumed--namely, that corporations of a certain size have a *legal duty* to provide an employee health plan that includes contraceptive coverage, and that they are subject to a penalty or fine if they do not do so. They don't; and they aren't. Please note: This would *not *mean that the government necessarily wins. It would, instead, shift the initial merits question to whether federal law imposes substantial pressure on these or any other employers to offer such a plan (notwithstanding that many if not most employers nationwide will abandon their plans http://images.politico.com/global/2014/04/30/health_care_4-29_3.html), something I've discussed at length in several Balkinization posts (see posts III, III-A, III-B, VIII, IX, XIV and XV here http://balkin.blogspot.com/2014/02/compendium-of-posts-on-hobby-lobby-and.html). *4. The Court does not resolve the merits, but instead remands the case to the lower courts for adjudication of either or both of two factual disputes*. These possibilities both came up at oral argument, after having received almost no attention in the briefs. *First*, the Court might remand the cases for trial on the question of whether federal law does, in fact, impose substantial pressure on these particular employers to provide an employee health plan (see Point 3, above), something their lawyer, Paul Clement, urged the Court to give him an opportunity to demonstrate. *Second*, the Court might remand the cases for trial on the question of whether the government could offer for-profit employers the same option that it has afforded nonprofit religious employers, pursuant to which they could opt out of involvement with contraceptive coverage, which would then be provided, and paid for, by third-party insurers or administrators. This is an alternative that plaintiffs' counsel first proposed at the end of his oral argument (see page 40 http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf). When Justice Breyer asked the Solicitor General about this alternative, the SG explained that because the plaintiffs had not previously suggested such a solution would be acceptable to them, the government had not yet calculated whether it was something that might be feasible: You're talking about a very openended increase in the cost to the government. Now, we don't know how much that cost would be. . . . Since this wasn't
Re: Hobby Lobby Question
As have I: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xvii-upshot-of.html On Mon, Jun 30, 2014 at 4:26 PM, Friedman, Howard M. howard.fried...@utoledo.edu wrote: I have just posted some (probably controversial) preliminary thoughts on Hobby Lobby on Religion Clause-- http://religionclause.blogspot.com/2014/06/some-preliminary-thoughts-on-todays.html Howard Friedman -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Berg, Thomas C. [ tcb...@stthomas.edu] *Sent:* Monday, June 30, 2014 4:12 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Hobby Lobby Question The majority opinion gives ammunition to the plaintiffs in the nonprofit cases by reemphasizing that when the plaintiffs determine that a certain complicity violates their beliefs, the courts shouldn't find that too attenuated to be a burden. On the other hand, Kennedy in his concurrence emphasizes the nonprofit (the insurer-pays) accommodation generally as the solution, and he seems not particularly enamored of the nonprofits' argument that the government can just pay for contraception with a new funding program. (The majority discussed that argument approvingly, and Kennedy joined the majority opinion in full; so it's one of those questions about parsing the opinion of a swing justice who also joined the majority opinion.) So isn't the Court pointing toward some form of the nonprofit accommodation with a different trigger. Are there reasons why the government can't adopt as a trigger the simple notice to HHS, the solution the Court adopted in the stay order in the Little Sisters case? Or was the government just waiting to see if it would win in Hobby Lobby? - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [ dlayc...@virginia.edu] *Sent:* Monday, June 30, 2014 2:28 PM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: Hobby Lobby Question The entire solution for the non-profits was done by regulation. So I assume that extending it to for-profits could also be done by regulation. Of course there could be some hidden obstacle that I don’t know about. The Court found the win-win solution; female employees can get free contraceptives, and religious conscientious objectors don’t have to pay. However they resolve the remaining objections from many of the non-profits, I would be surprised if they disrupt that solution. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Hillel Y. Levin *Sent:* Monday, June 30, 2014 10:54 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby Question As we are all digesting the Hobby Lobby decision, let me ask a question. The court suggests that a less restrictive means would be that the gov't provides the contraceptives directly (similar to how it handles non-profit objectors). What kind of government action would it take to institute such a program? A new statute? A new regulation? An interpretive rule? Something else? -- Hillel Y. Levin Associate Professor University of Georgia School of Law 120 Herty Dr. Athens, GA 30602 (678) 641-7452 hle...@uga.edu hillelle...@gmail.com SSRN Author Page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=466645 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. 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;
Re: Attenuation
Perry: I think this is a very important, and contestable, assumption: Hobby Lobby is using religious reasoning, not secular reasoning [in determining what sort of connection constitutes prohibited complicity]. What is the basis for that assumption? In fact, virtually all theological analysis I've ever seen about questions of complicity does *not *consist of what we would ordinarily call religious reasoning -- such as whether God exists, whether there's a heaven or a hell, whether God commands a particular thing, or whether and when an embryo has a soul or is a human life -- questions that secular authorities are incapable of or forbidden from assessing. Instead, that reasoning quite closely resembles the ordinary sort of reasoning that nonreligious authorities -- academic, legislative, and judicial -- make all the time about complicity and responsibility and culpability of accessories. (Of course, the exception is that, within the religious assessment, the existence and importance of the underlying evil -- e.g., prevention of implantation of a fertilized embryo -- is itself a religious question. I am referring, instead, to the questions of attenuation/proximate cause/responsibility/etc.) On Tue, Jul 1, 2014 at 5:47 PM, Perry Dane d...@crab.rutgers.edu wrote: Steve Jamar writes: I do not reject the legitimacy nor the religiousity of the plaintiff’s beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor “legitimacy” of the beliefs. With all due respect, though, I have always found the attenuation claim the least convincing of the arguments against Hobby Lobby's position. As the majority opinion suggests, and as many of us have been saying for a long time, Hobby Lobby needs to be understood as putting on the table two distinct religious claims: (1) Certain forms of contraception should not be used. (2) Hobby Lobby and/or its owners are religiously prohibited from signing insurance contracts that cover those same forms of contraception. Of course, Hobby Lobby has religious reasons taking it from claim (1) to claim (2). But it's not the business of the secular state to second-guess the quality of that reasoning. In fact, as far as the secular state is concerned, claim (1) should be essentially irrelevant. All that really counts is claim (2). Imagine an observant Jewish prison inmate who asks for kosher food. The prison administration tells him, We're happy to give you kosher food. We'll also be sure not to give you meat meals and dairy meals within however many hours of each other you think is religiously significant. But we can't give you separate (or disposable) plates for your meat and dairy meals. That would just be too expensive or complicated for us to do. The prisoner responds, That's not good enough, I'm afraid. As a matter of Jewish law, hot foot transfers its 'taste' to plates, which in turn transfer the 'taste' to other food served on those plates, even if the plates are thoroughly washed between uses. So I need separate or disposable plates. (There are more technicalities that I won't get into.) The prison administration replies, That's just silly. No 'taste' gets transferred. We understand that you have religious reasons for not eating meat and dairy food together, and we'll grant you that accommodation, but this argument you're making about plates and such is just too attenuated. I suspect that most courts, and most of us, would reject this defense of attenuation. (This has nothing to do with arguments over compelling interest, less restrictive means, etc.) Jewish law's conclusion [that (1) a ban on mixing dairy and meat foods entails (2) a ban on using the same dishes for dairy and meat foods] might be wacky from a secular or scientific point of view, but it's not up to the secular state to second-guess that view. Indeed, all the secular state needs to know is that the prisoner has a religious need not to eat meat and dairy meals from the same plates. If the prisoner is to lose, it will not be because his claim is too attenuated. I think the hangup in the Hobby Lobby context is this: We all appreciate that Jewish law and other system of religious ritual law often conceptualize the world in wacky-seeming ways very different from ordinary reasoning. The separate-plates rule is the least of it. (I say all this with all due respect; I guide some of my life by those wacky conceptualizations.) Hobby Lobby, on the other hand, seems to be using a form of argument (complicity with evil) that has a much clearer secular analogue. But that's deceptive. Hobby Lobby is using religious reasoning, not secular reasoning. That doesn't mean it should win at the end of the day. But it does
