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
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
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
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*
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*.
I have a short essay coming out next month that offers a considerably
different take than Doug on both the legislative history of RLPA and the
text of the 1999 version of RLPA as compared to RFRA. A draft of the essay
is available here:
Obamacare, RFRA, and the Perils of Legislative History
As someone who was involved in RLPA in Congress from day one through many
hearings, only a tortured reading of history supports the notion that Congress
believed that its proponents believed RFRA should apply to for-profit
organizations let alone that they intended it to.
Given current
A clarification of my own view on this question: I doubt many members of
Congress in 1998/99 -- let alone in 1993 -- gave any thought at all to the
question of whether large, for-profit companies and/or their owners or
directors could *bring a claim *under RFRA/RLPA. But I imagine Doug is
right
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
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
Very good questions, Alan. Three replies (in reverse order of your
questions):
1. Other rights contexts (like free speech) where third party costs are
present -- Religion is different. The Establishment Clause is a limit on
the government's power to authorize one party to act on religious
Two quick points before I have to prepare for class:
We are on a slippery slope when we refer to someone as seeking to have the
government[] ... authorize [it] to act on religious beliefs in ways that harm
others, when what is at stake is whether the government can force that person
to do
I agree with Chip about the political realities of a public option. Even if
that option were politically viable, I don’t see how the public option can be
considered a less restrictive alternative in cases dealing with exemptions from
regulations.
Employers have previously brought free exercise
I respect Greg's intent here. But, from where I am sitting, facts are more
important than lofty goals when it comes to the protection of women from sex
abuse and assaults.
To the extent that Greg's reasoning is intended to imply that universities
opposed to contraception are oases of
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
Doug-- the floor debate on RLPA? It was never passed. And I don't know
what you mean by both sides agreed. Many members agreed
that it was a bad bill, which is why it didn't pass. Bobby Scott was adamantly
opposed from day one, and raised every argument available to halt it,
and
I genuinely do appreciate the respect. I have been gratified by the
surprisingly large number of encouraging private messages I have received from
people of different views politically and about the value of artificial
contraception.
So I feel somewhat churlish in saying this, but I don’t see
I genuinely do appreciate the respect. I have been gratified by the
surprisingly large number of encouraging private messages I have received from
people of different views politically and about the value of artificial
contraception.
So I feel somewhat churlish in saying this, but I don’t see
Greg: I agree that views on contraception have nothing to do with the sexual
culture at a school. You wrote the following in which you suggest that a
school that opposes contraception creates an oasis for male/female relations.
Rather, they have seen the assumption that all women use (or
These are very helpful responses, Chip. Let me try to use them to identify and
clarify where I think we agree and disagree.
1. I agree that Religion is different and the Establishment Clause is part of
what makes it different. The fact that free speech doctrine requires government
to allow
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