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
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
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
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
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
Griswold is not at issue. For nearly fifty years after Griswold,
contraception was uncontroversial because of an implicit but quite sensible
agreement to live and let live. The Church and those who followed its
teaching didn't try to make contraception illegal or interfere with anyone
who wanted
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,
All of this makes it apparent why RFRAs like this are poorly conceived. We
have no idea what their reach will be and how the courts will balance the
various interests involved. I have no beef with religious accommodations on
a case-by-case basis (which worked reasonably well for quite a long
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
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
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,
Yes, we have been through it before, and we just disagree as to the connection
under the mandate between the commercial actor and the provision of the drugs
or services.
Here, though, I think we're dealing with a separate issue. The rationale being
advanced would apply even if the commercial
All of this makes it apparent why RFRAs like this are poorly conceived. We
have no idea what their reach will be and how the courts will balance the
various interests involved. I have no beef with religious accommodations on
a case-by-case basis (which worked reasonably well for quite a long
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:
Of course substantial burden isn't limited to large religious groups. But
when you do that, you get a wave of litigation. And judges may be able to
see and take seriously a problem they (erroneously in my view) had trouble
understanding or took less seriously when the religious belief seemed more
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
Well, of course, one of the reasons that RFRA was originally supported by a
broad coalition and RLUIPA received broad support as well was that not everyone
thought that religious accommodations on a case-by-case basis worked reasonably
well. Obtaining accommodations politically case-by-case
Many thanks to Mark for this extremely interesting link. The article concludes
with the following:
If you can't be absolutely sure the drugs don't block implantation, what
probability of killing a human being would you accept? said Dr Jane Orient, an
internist in Tucson, Arizona, and
Mississippi does not have a law against sexual-orientation discrimination; if I
understand the Lupu et al. letter correctly, the local resolutions in Oxford,
Hattiesburg etc. are not laws. Therefore, whatever the motivations of the
proponents of the Mississippi state RFRA, it seems the statute
The Supreme Court tried to step out of the interest-balancing business in
*Smith*, in part because it was terrible at it. We should let it get out of
that business to the extent possible. As a religious person myself, I don't
like it when the court decides how substantial a burden something is on
I appreciate the sentiment in opposition to Mississippi SB 2681 in that
this law would provide protection for business owners who wanted to
discriminate through their corporation. (I still can't see how this
wouldn't signal a breach in the corporate veil as the ultimate expression
of an alter
I can say with supreme confidence that my religious group has not done a
particularly good job representing my interests. They cannot, as they do
not know me, and my sincere religious beliefs are in conflict in
significant ways with other members of my religion. Even if I was within
the majority
Just to provide some factual information, here is the United States Food and
Drug Administration's approved patient labeling for ella, which states: It is
possible that ella may also work by preventing attachment (implantation) to the
uterus.
Thanks Brad. I'm still not sure I understand, though. You have helped me
understand why, in the *absence* of a contraception mandate a religious
employer with these beliefs would be obligated to choose not to cover
contraception. But the contraception mandate doesn't allow the employer to
choose
I think it is difficult only because of the impossibly long, subjective,
untestable stretch of the religious (not legal) complicity theory. If there is
.1% chance of something happening, does that make one complicit in it? Does my
paying taxes make me complicit in the 30,000 annual deaths on
I don't recall the case name, but it involved a Jehovas Witness and her
child. The child needed life saving surgery that would necessarily involve
blood transfusion, so the mother refused to consent. The judge in the case
speculated that the mother actually wanted the surgery to go through, but
I can get behind liberty. Can you (and others) get behind equality?
I try to speak for others only when asked. And my answer is maybe.
Liberty is hard to nail down, but equality is even more ephemeral. At the
very least, a diverse society where all citizens have an equal right to be
wrong seems
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
Hillel Levin writes: Further, I'm not moved by the argument that the logic for
the contraception mandate could apply just as well to abortion. Under the
Court's logic in Sebelius, Congress could impose a broccoli mandate (with a tax
penalty) if it chose to, but it isn't going to because people
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
I can get behind liberty. Can you (and others) get behind equality? Often
they work together, but sometimes they are in serious conflict. State
sanctioned liberty to exclude and discriminate against denies equality to some.
State sanctioned and enforced equality limits the liberty of some
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
The Supreme Court has not done a great job. The legislatures have generally
done a worse job. Legislators are unable to make principled decisions with
respect to unpopular groups. They have little time to devote to these issues.
They often vote out of party loyalty, or on the basis of what they
Thomas:
Thanks for that thoughtful analysis. I wasn't aware of that bill. I think
religious groups that oppose abortion should vigorously oppose it, and I
think they will win. It isn't easy to pass controversial legislation in the
face of focused, determined opposition, particularly concerning a
I'm curious about something in your letter. Toward the end, you say,
Article 3, section 18 of the Constitution of Mississippi already protects
as sacred 'the free enjoyment of all religious sentiments and the different
modes of worship.' Senate Bill 2681 is unnecessary to protect freedom of
To shift Sandy’s tort analogy — if you walk the streets of NYC at rush hour you
have to expect to get jostled by the crowd and not every touching is therefore
an actionable battery. When Hobby Lobby and Notre Dame choose to walk the
streets, they assume the risk of some jostling.
Steve
--
This is much more difficult than Sandy suggests.
The skyscraper builder doesn't accomplish its purpose through the death of a
worker; that is, the worker's death does not advance the building of the
skyscraper. In fact, the death is likely to hinder the work. It is an
unintended and unwanted
Tom Berg writes that there are costs to opposing RFRAs, by which he seems
to mean there are benefits for religious minorities to having RFRA's.
Could be, of course. But look at his two generic examples:
1. Perhaps a state RFRA in Mississippi would be used, say, by a mosque to
protect itself
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
Cryptic. Equal right to be wrong is a good start at what? That is not taking
equality seriously and horribly undervalues what the civil war meant and that
the 14th amendment is just as much a part of the constitution as the 1st and
5th.
Sent from Steve's iPhone
On Mar 11, 2014, at 10:02
I think history is replete with examples of people who defended their actions
by saying, I was just following orders, but we rarely if ever accept that
defense. The only difference is that, in this instance, the orders are coming
from Congress. The Fugitive Slave Law of 1850 is a fair
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 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
Say you support Free Exercise regulatory exemptions but you don’t support the
claims in Hobby Lobby (or the other for-profit/commercial/complicity claims,
like Elane Photography ). In deciding what to think of state RFRAs, you might
be interested in proportions. Only a tiny fraction of state
The Civil War? The thing where our nation split apart and brother killed
brother on a then unimaginable scale due to longstanding issues baked into
the fabric (and constitution!) of our nation involving total enslavement of
certain people? And I am undervaluing its meaning because I gave a cryptic
Posts are coming in faster than I can read them, so I'll just respond to
Steve's post about complicity (see below) and then do some other work.
I think Steve is conflating two issues.
One issue is whether the religious claimant believes the conduct to be
wrongful, so that he cannot permissibly
Religious and moral obligations aren't bounded by what the state allows. We are
bound to feed the hungry even if the state prohibits it, and some of us are
bound not to eat certain foods or to engage in other conduct even if commanded
by the state. A view that we aren't religiously or morally
Thanks for your extremely helpful post, Chris. I was going to list some
religious liberty cases I've worked on as examples to make the same point, but
your list is more current. A lot of religious liberty disputes involve state
and local officials and agencies callously burdening the liberty
If anything, analogizing religious objections to the exercise of conscience
undersells the problem. For the (archetypal) Jehova Witness, life is
eternal, except for the damned who are annihilated. For the (archetypal)
Buddhist life is suffering, and disobedience to religious command means
So Hillel Levin asked a good question about why we should prefer RFRA-like
statutes over narrow targeted exemptions addressed to particular religions,
their particular beliefs, and the particular situations they find themselves
in. Why can’t religious groups simply go to the legislature when a
50 matches
Mail list logo
