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Steve Shiffrin
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I have a solution to the Hobby Lobby case with which no one will agree. I have previously argued that the government action at issue imposed a serious religious burden on the owners of Hobby Lobby because they were being compelled to engage in activities to which they were morally opposed. Moreover, the government instead could have treated closely held business corporations whose ultimate owners unanimously objected on religious grounds the same way that religious corporations are treated. In that case, women would be fully insured for contraceptive devices. On the other hand, less restrictive alternatives ordinarily cannot be implemented immediately and I am told that administrative changes in regulations cannot be applied retroactively. So it has been in Hobby Lobby. As I understand it, the change in the regulations have not yet been implemented, and when they are they will not be applied retroactively. See (here). As a matter... Continue reading
Posted 3 days ago at
Typepad HTML Email Clark In the second paragraph I assume that the exclusion by the organization is based on deeply held religious convictions, but I do not believe a University has to recognize and subsidize organizations that discriminate on the basis of race or sexual orientation regardless of their reasons for doing so. I agree that the effect is to privilege some theological sets of beliefs over others, but not because the state has made a theological judgment. The state has made the political judgment that racial equality and equality for gays and lesbians is important for the polity. Steve
Typepad HTML Email Clark I may have misinterpreted your question. Suppose an organization excludes any person who engages in sex outside of heterosexual marriage whether gay or straight. The impact of the policy is to exclude gays. That impact in my view should count as discrimination against gays even though the policy covers more than gays. I think the same of neutral regulations that have a discriminatory impact on the basis of race, but the Court has long held that impact without intent in the area of race does not give rise to any form of heightened scrutiny.
Intervarsity Christian Fellowship an evangelical student organization with 949 chapters on 616 campuses was “derecognized” last week by the California State University system. The offense leading to the derecognition was that the ICF required its leaders to have Christian beliefs. This constituted discrimination on the basis of religion. I am no fan of ICF or of evangelical Christianity, but this sanction against ICF strikes me as indefensible. It generally makes great sense for the University system not to recognize organizations that discriminate on the basis of religion. Ordinarily, such discrimination is rightly against public policy. The Sierra Club ought to be able to select its leaders by taking their environmental views into account, but refusing leadership to Catholics, Jews, or Muslims makes no more sense than it would for the Sierra Club to discriminate on the basis of race. But ICF ought to be able to select its leaders on... Continue reading
Posted 5 days ago at
In a prior post, I argued that the Hobby Lobby decision properly accommodated the relevant interests because of the availability of a less restrictive alternative. Under that alternative, closely held business corporations would be treated for these purposes in the same way as religious corporations. As the Court put it, that sort of treatment “achieves all of the government’s aims while providing greater respect for religious liberty.” The Court said that the “effect of the HHS-created exemption on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.” Relying on that language, I concluded that the women at Hobby Lobby would not be harmed by the decision. I was too fast. I continue to believe that the effect on women under the accommodation would be precisely zero, but that assumes the accommodation is in effect. Changes in administrative regulations, however, are not... Continue reading
Posted 7 days ago at
Many years ago I wrongly argued that truthful prescription drug advertising deserved First Amendment protection. I did not then know that the commercial speech doctrine would be tortured to protect the advertising of tobacco. It is hard to believe that the merchants of death and suffering deserve constitutional protection for the hawking of their harmful products. Commercial advertising was outside the protection of the First Amendment for almost two hundred years before the Court changed course. It was outside the protection primarily because despite specious arguments to the contrary, commercial advertising taken as a whole is non-political. Proposing commercial transactions generally is not asking for political conduct. But despite the intention and content of individual advertisements, commercial advertising taken as a whole has negative political effects of constitutional dimension. The Constitution is a mixture of Lockean Liberalism and Civic Republicanism. It endorses rights as a part of moral reality, but... Continue reading
Posted Sep 9, 2014 at
According to the Center on Responsive Politics, outside spending in the 1992 elections was $19.6 million; in the 2000 elections it was $51.6 million; in the 2012 elections it was $1 billion. It is hard to believe that the Supreme Court decisions had nothing to do with this. According to the Court, this is not problematic: Buying access and influence is part of what it means to have a responsive democracy. If you believe helping the wealthy is the same as advancing the public interest, this is all well and good. But some of the same people who believe that the original understanding of the Constitution should control interpretation need to recall that the framers sought to guarantee a Republican form of government and that form of government was designed to resist various forms of corruption in particular the corrupting influence of factions. Instead of a Republican form of government,... Continue reading
Posted Sep 6, 2014 at
I attended a meeting of the Claremont Institute last week and watched a panel on the future of the Republican Party. I suspect that every person in the room other than me was a card carrying conservative. The mission of the Claremont Institute after all is to teach the brightest conservatives the principle of the Constitutional founders. The panels of the Claremont Institute debate how conservatives should think about the founding and the issues of the day. Three of the presentations stood out to me. Bill Kristol presented a talk about the factors that made it likely the Republicans would control the Senate and the factors suggesting that Republicans would win the next Presidential election. But he also presented the factors suggesting the Democrats would prevail. Of course, Kristol wants Republicans to win, but the talk in terms of substance could have been given by any smart and knowledgeable political... Continue reading
Posted Sep 5, 2014 at
In a series of well known decisions, Republicans on the Supreme Court have made it easy for big money to influence the outcome of election campaigns. The cynical side of me suggests that it is not a coincidence that these decisions are likely to help Republicans over the long haul. So I find it surprising that in this difficult year for Democrats, the Democratic Party committees and the Democratic Super PACS are outraising the comparable Republican groups by substantial margins. See (Wall Street Journal subscription required). This does not include money given to 501 (c) (4) groups where disclosure is not required, but it is still worrisome to Republicans, like those at the Journal. It ought to prompt some concern by the rank and file Democrats though because it is a vivid reminder that the Democrats depend upon large donations just as much as the hated Republicans. When Barack Obama... Continue reading
Posted Aug 28, 2014 at
Sister Elizabeth Johnson, C.S.J. is a prominent Catholic theologian whose book Quest for a Living God was criticized by a committee of American Bishops for not toeing the Vatican line. I would ordinarily regard this as a description and not a criticism, but in this case there is substantial evidence that the Bishops misread the book, criticized positions she did not take, disagreed with positions she did take that are consistent with the Catholic catechism, claimed that she had undermined the Gospel (anyone who has read any of her books would find this claim implausible) and otherwise engaged in careless analysis. Indeed, the analysis was so poor that Commonweal editor Grant Gallicho was prompted to write a post in which he wondered whether the doctrinal committee had even read the book! See here. As is so often with censorial criticism, purchases of the book significantly increased. Recently, the Leadership Conference... Continue reading
Posted Aug 22, 2014 at
The Huffington Post reports here that a Satanic religious group is citing Hobby Lobby to claim that the rights to religious freedom of women belonging to the group would be violated by abortion materials required by informed consent laws. Their claim is that the materials include false statements and that their religion calls for making health decisions based on the best scientific understanding of the world. As Marc DeGirolami observes at the Center for Law and Religion (here), however, Hobby Lobby has no application to the informed consent laws of state governments (it only applies to the Federal government) and it is not clear that the mere reception of materials is a serious enough burden on religion to trigger statutory or constitutional religion protections (even assuming the Satanists were to qualify as a religion). A freedom of religion objection is unsustainable, but a freedom of speech objection is well placed... Continue reading
Posted Aug 18, 2014 at
I argued in a recent post here that the Supreme Court has prepared the way to overturn a 40 year old precedent that has protected the financial stability of public unions. Abood v. Detroit Board of Education held that objecting members of a bargaining unit could not be forced under the First Amendment to pay union dues used for its political expenditures, but could be compelled to pay union dues used to support collective bargaining, not because the First Amendment was inapplicable, but because First Amendment standards were satisfied. On the last day of the term this year, Harris v. Quinn criticized Abood’s view that First Amendment standards are satisfied when objecting members of a bargaining unit are forced to pay dues to support collective bargaining. I argued that Abood was rightly decided for the wrong reasons. I do not think the First Amendment rights of an individual are implicated... Continue reading
Posted Aug 7, 2014 at
Released the same day as Hobby Lobby -to no public fanfare - Harris v. Quinn decided a case of little national importance on outrageous grounds purportedly rooted in the First Amendment while setting the stage for a decision of major national importance. The case raised the question whether home health workers could be forced to financially support a public union to which they were ideologically opposed. A forty year old precedent, Abood v. Detroit Board of Education, ruled that the First Amendment did not preclude the imposition of a fee to support a public employees union if they were members of the bargaining unit that the union served. In Quinn, the Court ruled that one of the interests at stake such as peace in the workplace was not implicated when the workers were spread out in many workplaces. Not unreasonable though the interest in not permitting free riders was obviously... Continue reading
Posted Jul 28, 2014 at
Typepad HTML Email Tamara Terrific comment. As you probably would guess, I agree with most of what you say and think it is very well argued. Just a few comments. In using the term liberal, I may be concentrating too much on the ACLU and the majority of First Amendment scholars. I think of my position on free speech and yours as a position of the left rather than liberal , but I recognize that some would characterize this as a dispute among liberals. As to my position on free exercise, I regard that as part of a dispute in liberal politics (despite the fact that most supporters of Hobby Lobby are on the right People like Tom Berg, Susan Stabile, Perry Dane are certainly not associated with the right); I do not think of my position as likely shared by many people who are ordinarily left of liberals. I entirely agree with your view of corporate social responsibility. I also strongly agree with your argument that the anti-discrimination theme in Hobby Lobby re distinguishing between corporations is indefensible and should arouse some concern that it will find resonance in problematic ways. But I do not think the constitutional rights of woman are burdened by the Hobby Lobby decision. I also think they will have statutorily guaranteed insurance for contraceptives (which under a just constitution would be a constitutional right). If I did not think so, we would be on the same side on this issue.
Typepad HTML Email Thank you for the comment. I think the links you supply are worth reading (though the second seems overargued) and they complicate the picture. I could imagine some employers saying that the fiduciary obligation as applied (on your understanding) to offer choices of mutual funds that are not socially responsible creates a religious burden. Steve
I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification. Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim. I respectfully disagree with one of their main reasons and strongly disagree with another. I understand the argument that a corporation is not a person. A corporation has no conscience. On the other hand, religious organizations including corporations have freedom of religion rights. The question is whether a for-profit corporation (which liberals typically want to engage in some social... Continue reading
Posted Jul 14, 2014 at
Concurring in the McCullen decision last Thursday, Justice Scalia joined by Justices Kennedy and Thomas and Justice Alito, concurring in a separate opinion, argued that the Massachusetts law prohibiting persons except employees, patients, police and the like from entering a 35-foot buffer zone to the streets and sidewalks around the entrances to abortion facilities was a form of content discrimination. See Dorf On Law. He gave two arguments: one is difficult for me to take seriously; the other seems dead on. Nonetheless, the conclusion Scalia draws from the existence of content discrimination strikes me as inhumane – bereft of human feeling - and is symptomatic of a disease which afflicts First Amendment jurisprudence which in this case takes a gendered form. Justice Alito give most of his attention to Justice Scalia’s second argument. The idea is that by permitting hospital employees into the buffer zones while preventing anti-abortion advocates in... Continue reading
Posted Jul 1, 2014 at
Typepad HTML Email Mike Thanks. I am about to edit Quinn for the casebook. I meant to put in a link to your post. Will do so when I post part II. Steve
The Court’s treatment of the attempt of Massachusetts to protect the safety of abortion patients and to prevent obstruction and harassment by prohibiting persons (with the exception of employees, patients, police and the like) from entering 35 feet buffer zones around hospitals that provide abortions raises intriguing issues. On the one hand, it seems reasonable –at least to me – that in this vulnerable moment, an abortion patient should not be compelled to face the torrent of abuse hurled upon them by angry anti-abortion advocates, let alone be forced to walk along a gauntlet of such abuse in close quarters. On the other hand, the plaintiffs in the case built an admirable record showing that they did not seek to abuse, but to counsel alternative in a quiet voice at a time when many patients experience buyer’s remorse, and the record showed that many patients had been persuaded by these... Continue reading
Posted Jun 30, 2014 at
The Supreme Court decision on cell phones yesterday was a welcome development, but the Court has a long way to go before its privacy principles are anything other than warped. After yesterday’s decision, before searching your cell phone the police need a search warrant on the ground that a cell phone search is a deep intrusion into one’s private life. But without a warrant and without any justification, as a matter of constitutional law (in the absence of statute), police can get your bank records (including your credit card records), your telephone records (who you called and who called you), find out who sent you mail and who you sent mail to, and secure information from your internet provider about your use of the computer and even search your trash. They can get all this information without justification on the specious premise that there is no search despite the deep... Continue reading
Posted Jun 26, 2014 at
Marc DeGirolami has a response (here) to my post on the sagacity of Madison (here). It is well worth the read. Continue reading
Posted Jun 10, 2014 at
Marc DeGirolami, a distinguished law and religion scholar at St. John’s co-hosts an important law and religion blog with his outstanding colleague Mark Movsesian, and he recently posted an intriguing short essay ( part of which I strongly disagree. In that post, he calls attention to a New York Times column by Oliver Roy. The essence of the column is that the Christian parties of the right in Europe have secularized and have lost contact with Christian values. At the same time the right is claiming that Europe is Christian – meaning anti-Islam. In the end, the Right’s formal embrace of Christianity gives a blasphemous cover for discrimination. What aroused my disagreement was DeGirolami’s criticism of Oliver’s column, namely its embrace of the notion of separating church from state. DeGirolami contends that this separation theme has not only been rejected by the current Supreme Court (it has), but also... Continue reading
Posted Jun 9, 2014 at
Excellent post Perry. It strikes me that German law provides some support for your your view. In the German crucifix case, there is no German Establishment Clause, but students cannot be compelled to study "under the cross," nor can witnesses be forced to testify "under the cross." On the other hand, my understanding is that crosses are all over Bavaria.
Those who study free speech are well aware that in the clash of privacy and free speech interests, the U.S. as a general part of free speech idolatry of free speech routinely permits the public disclosure of embarrassing details of a person’s private life. Thus the sex lives of public persons are open season along with the details of their health and finances. Those newspapers publishing the names of rape victims have been constitutionally protected. Although the Court has left open the possibility that it might not be permissible in some circumstance to publish the names of such victims, newspaper editors can breathe easy. Conservatives and liberals both engage in free speech worship when privacy rights are at stake. Europe, on the other hand, is far more sensitive to the dignity of human beings even famous human beings, and their right to privacy. So, for example, when a British paper... Continue reading
Posted Jun 1, 2014 at
This graduation season was marked by criticism of the selection of speakers at many colleges. This is not unusual. What seemed more pronounced in this cycle was the ferocity of the response. Most shocking to me was the response of Stephen Carter, a Yale Law professor, who used a hypothetical graduation podium to present a bombastic, sarcastic diatribe in which he berated the graduates for censorship, lack of reflection, and intolerance. Similarly, Damon Linker complains of the lazy moralism of academia and regards the objections to the selection of Condoleezza Rice on the ground that she approved of torture as “academic moral grandstanding.” Whatever the merits of the policies embraced by Rice, Linker opines that speakers like her should not be “excommunicated, ignored, or banished from public life” (as if criticism of her selection banished her from public life). One of the common themes of these essays is... Continue reading
Posted May 20, 2014 at