In the message below I meant Mother Angelica's network (EWTN), not Mother
Teresa's. Never could tell those two apart! :-)
-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Ave
Doug Laycock writes:
> No law prohibits political discrimination by private employers, except in DC
> and maybe a few other places I don't know about. But I think not very many,.
It turns out that bans on some forms of political
discrimination by private employers are presen
If that was Steve's point, then he was evading my question. I said, "I'm
not saying such a statute would be unconstitutional. I'm just asking if the
burden would be different."
Art
On Sun, Sep 30, 2012 at 10:22 PM, wrote:
> Steve's point, I believe, was simply that there is no constitutional r
Huh?
On Sun, Sep 30, 2012 at 10:15 PM, Steven Jamar wrote:
Status based vs. belief based.
>
>
> On Sep 30, 2012, at 10:10 PM, Arthur Spitzer wrote:
>
> I find Steve Jamar's post ("No one needs to be an employer") puzzling.
> Could Congress enact a statute providing "observant Roman Catholics (o
Steve's point, I believe, was simply that there is no constitutional right to
hold a particular job or conduct a particular business, or business at all.
That has been settled for decades, has it not? Religious believers sometimes
have to make life choices that are narrower than others might cho
Status based vs. belief based.
On Sep 30, 2012, at 10:10 PM, Arthur Spitzer wrote:
> I find Steve Jamar's post ("No one needs to be an employer") puzzling. Could
> Congress enact a statute providing "observant Roman Catholics (or Moslems, or
> Jews, or Seventh Day Adventists, or Mormons) may n
On Sep 30, 2012, at 9:49 PM, Douglas Laycock wrote:
> Steve's second point -- the difference between historic exclusion of
> Catholics as such and contemporary exclusion of those who adhere too strictly
> to certain Catholic teachings -- is just Smith's holding about generally
> applicable law
Alan-- These are public policy questions in my view, not constitutional or
RFRA-related.
As a policy matter, I would object to all 3. The first is an unreasonable
life-and-death limitation to put on anyone's health insurance coverage. (Even
Jehovah's Witnesses, who have in some cases, acc
I find Steve Jamar's post ("No one needs to be an employer") puzzling.
Could Congress enact a statute providing "observant Roman Catholics (or
Moslems, or Jews, or Seventh Day Adventists, or Mormons) may not be
employers"?
Would such a statute be different, in its burden on such people, from a
sta
How about an employer being exempt from buying insurance, but then paying a tax
that goes into a pool for the government to buy group insurance for those
employees. How is that substantively different from just requiring the
insurance benefit in the first place? And yet this sort of tax seemed
Steve's second point -- the difference between historic exclusion of Catholics
as such and contemporary exclusion of those who adhere too strictly to certain
Catholic teachings -- is just Smith's holding about generally applicable laws.
The whole point of RFRA was to create statutory protection
I was quite clearly talking about religious employers in secular commerce.
The religious institutions engaging in secular/religious endeavors like
religious schools and hospitals are different from someone making and selling
widgets.
There is also quite a difference between pure status exclus
Marci,
Would you object if the government created an exemption package that did three
things.
It exempted the religious employer from a regulation requiring employers to pay
for health insurance that covered blood transfusions.
It provided insurance coverage for employees working for exempt re
Mark-- Should it matter whether we are talking about blood transfusions or
abortion? If Catholic institutions can win in the ACA cases on abortion, then
Jehovahs Witnesses should be able to not pay for coverage for blood
transfusions for their employees. There is no persuasive distinction betw
Re Sandy's queries about how the employment discrimination laws work:
Title VII applies only to employers with 15 or more employees. State-law
equivalents apply to much smaller employers -- to employers with only one
employee in some states, somewhat more in others, but well under 15 nearly
eve
Given the history of religious exclusion from occupations in England and
Ireland, it ignores the history of the Religion Clauses to say that de facto
occupational exclusions are not even a burden. Maybe justified by a compelling
interest, maybe neutral and generally applicable under Smith, but u
Yes, I believe there is a difference between prohibiting some conduct and
requiring some conduct. I agree that both can violate religious liberty. But
they are not equivalent.
There is a difference between running a large commercial establishment and
being a solo practitioner as a dentist or
Steve's post makes it clear where some of the areas of disagreement are on this
issue.
If I understand his argument correctly, Steve believes there is a difference
between stopping a religious person from doing something his religion requires
him to do and requiring a religious person to do som
As I noted in an article some long time ago, there are (at least) 3 interests
at stake in employment cases -- society's interest in non-discrimination and
availability of employment for people; the employer's interest in practicing
his or her faith in the workplace; and the employee's interest i
My claim entails no such thing. Despite repeated mischaracterizations of these
claims by those opposed to them, these claims are not about what the employEE
does. They are about what the employER does when he arranges for and pays for
insurance coverage that pays for medications that he believes
Sandy, my particular objection was to the argument that no cognizable claim of
"cooperation with evil" has been stated here. That seems to me wrong, and
disposed of by Thomas. The practical concerns you raise may pose real problems
for the claims by commercial businesses, at least those that a
I the entailment of Doug's position that "very small businesses" should be
allowed to refuse to hire employees on the basis of their disapproval of any
aspect of the employee's behavior? I realize this follows from classic
employee-at-will doctrine, and I suspect (I don't teach in the field, so
Again, the analysis would be very different if the govt extracted money from
the employer and gave money to the employee. We all must pay taxes, whether we
want to or not, and we have no right to control what the government does,
absent success at the ballot box.
Marci’s analysis also requires
In case this was confusing to list members, my quick comment to which Marty
replied was bounced by the list (because it had too many addressees). Obviously
it got through to Marty.
Perhaps someone who has more information about insurance policies will know
whether they list particular matters t
So long as an organization is hiring outside the faith, I think these cases
should not go in favor of the religious organization.
These arguments are religious liberty-creep arguments in that the argument is
not that the believer will be forced to engage in conduct
that violates his or her belief
My explanation was not that the judges are rooting for the government, although
sometimes they are. My explanation was that a finding of no burden "makes hard
cases go away."
These cases involve direct regulation of religiously motivated behavior. The
Court's point in Bowen and Lyng was that t
With genuine respect to Tom, I don't think that one can really generalize from
Thomas. Burger did say what Tom says he said, but it simply can't be the case
that the First Amendment allows highly idiosycratic religious believers
effectively to torpedo important programs, especially when there i
Colleagues,
I think it needs to be recalled that the "cooperation with evil" / "violation
of conscience" issue is not, in the context of the RFRA and other arguments
against the HHS mandate, the whole story. "Religious freedom", both as a moral
matter and as a legal one, can be burdened, in way
Please do not construe this post as being directed at any of the participants
to this discussion so far. (It is certainly not directed at either Marty or
Mark S or Marc G.)
I think political attitudes about church-state issues, and religion clause
jurisprudence generally, is spiraling downwar
We've talked about this before a bit on the listserv, and I don't want to
rehash old arguments-although I think I agree with Eugene Volokh's
comments when Marty raised this issue earlier,
http://lists.ucla.edu/pipermail/religionlaw/2012-February/025600.html.
But let's assume for the moment that
Marty,
The fact that services must be covered in the plan by "virtue of legal mandate"
(are "required by law") can't be enough to counter the asserion of a burden,
can it--or even be a significant factor in countering it? That would do away
with virtually every free exercise claim (I'm only
The references to Barnett and Yoder are misplaced. This case is closer to
Bowen, Lee, and Lyng than to either of those cases.
In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the
burden found to be insufficient in those cases is direct
rather than indirect.
The notio
I wonder what sort of evidence Marty is looking for. What arguments qualify as
"serious" arguments? And "serious" for whom? A "serious" argument is not
necessarily an argument that one finds persuasive, though that might be the
standard. It could instead be an argument that one disagrees wit
I'm not sure why the existence of a contract would fundamentally alter the
religious obligation question. But even if it did, the employer is not
required to enter into a contract to provide contraception. It is required
to offer its employees access to a health-insurance plan. To be sure, that
My post bounced, apparently because of the number of recipients! Resending
without so many cc's. Sorry for any duplicate receipts.
On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman
wrote:
> For what it's worth, at our Georgetown Conference on this issue last week
> (a video of which should be po
Mark references a long tradition of religious thought about cooperation with
evil, and how close is too close -- a tradition that is found in both
Christian and Jewish teachings (and probably other faiths too, but I know less
about those).
This tradition was probably not explained to the court
I appreciate the analysis, Mark. But don't agree that every religion gets to
decide where to draw the line on responsibility for remote effects of its
actions any more than I get to draw the line on proximate cause because I view
it differently from Anderson and Cardozo. I don't have to agree t
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