Jan 21, 2014

In Marbury, Marshall Quotes From Massachusetts Constitution Authored by John Adams

After reading Marbury v. Madison for the umpeenth time, I was drawn to this line:

The government of the United States has been emphatically termed a government of laws, and not of men.

If that last bit looks familiar, it should. It’s a direct quote from Article XXX (that is 30) of the Massachusetts Constitution of 1800, authored by none other than fellow federalist John Adams (who appointed Marshall to serve as Secretary of State, and Chief Justice:

Art. XXX. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws, and not of men.

Was this another “fuck you” to Jefferson from Marshall?

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Jan 21, 2014

Defending Unpopular Causes. Same-Sex Marriage Edition.

The Smithsonian Institute has a feature discussing Brown v. Board of Education titled “The Defenders of Segregation.” It profiles the legal team that argued on behalf of the states in the companion cases to Brown. Most prominent among the lawyers is John W. Davis, who argued 140 cases before the Supreme Court, including 73 as Solicitor General. Needless to say, Davis, and the other lawyers on this list are not remembered fondly by the Smithsonian Institute.

With 60 years of hindsight, how should we view these advocates? Let’s put aside for the moment that most (but not all)  of them were in their personal capacities advocates for segregation. How do we view lawyers who voluntarily took the cases to defend what is now reviled as an odious stain in our constitutional history? In our country, we have a long, long tradition of lawyers representing very unpopular causes. The most-cited example is, of course, John Adams who defended the Red Coats who opened fire at the Boston Massacre.

When many lawyers who defended accused terrorists at Guantanamo were castigated for their representation, they promptly trotted out John Adams. They said that even if these people actively worked to harm Americans (let’s focus on the ones who actually engaged in terroristic acts, and not the ones who were detained indefinitely without evidence), they deserved a good defense because our Constitution requires it. I agree with these statements emphatically. All  clients, no matter how loathsome, deserve zealous representation. Our Constitution demands no less. Murderers, rapists, serial killers, terrorists, Klansmen alike. They should all be ably represented, no matter how many lives they ruined.

And what do we make of the lawyers as people? Do we criticize the lawyer as a sympathizer of terrible people, or someone who wants bad things to happen to America? Of course not. We separate the lawyer from the case–even though this is something of a fiction, as the most successful detainee lawyers spent years of their lives, invested in the case as personal advocates. They became a part of the case.

Which brings me back to the question I posed earlier. What happens when a lawyer is defending not a person, but a law. And that law requires treating some people different than others. First, does that law deserve a zealous defense? I think most people would still agree that the answer is yes. Second, should the lawyer be castigated for taking the case? It is here that I think the issues fork. In case you couldn’t tell, I was talking about Utah’s eventual appeal to the Supreme Court concerning the constitutionality of its same-sex marriage ban. As an aside, Judge Shelby ruling first made Utah the case everyone will remember. Oklahoma, (soon) Ohio, and others will join the lot. But Utah will be the main event.

Recall that in 2011, Paul Clement publicly departed from King & Spalding after he agreed to represent the House Republicans in the defense of the Defense of Marriage Act. BLT reported that “Pressure from within King & Spalding — as well as from some of its clients — were said to be factors in Clement’s exit.”

Earlier to this week, I saw a post that Gene Schaerr, the head of Winston & Strawn’s appellate practice would represent Utah in it’s eventual appeal to the Supreme Court, defending it’s ban on same-sex marriage. I commented to a friend, “Remember when Clement left King & Spaulding over DOMA. This may be similar.” One minute later I saw Chris Geidner’s report at Buzzfeed that Schaerr was leaving King & Spalding. Tony Mauro reported:

“Gene Schaerr, our former partner and formerly one of the co-leaders of our appellate and critical motions practice, has decided to resign from the firm in order to take a position as Special Assistant Attorney General for the State of Utah in order to lead the State’s appellate efforts in the Kitchen, et al. v. Herbert et. al case. Linda Coberly will continue to lead the firm’s appellate practice and will facilitate a seamless transition for our clients. The firm wishes Gene all the best.”

Schaerr resigning before he took the case is a signal that he told the firm about the case, and the firm told him that he could not stay. Mind you he was the head of their frickin SCOTUS practice (as was Paul Clement). This is not like asking an associate to take a hike. It is possible, of course, he decided he would need to dedicate 100% of his time to the case, and could not handle other matters. But I find this really unlikely, as the case is quite far removed from One First Street. Or, maybe he wanted to leave Big Law and this was his out?

Geidner suggested that his departure was due to the controversial nature of the case. Ian Millhiser is more blunt with the click-bait headline: “Are Anti-Gay Clients Now Too Toxic For Big Law Firms To Take Them?

Beyond the risk that a major client may balk at the firm’s activities, there’s another obvious reason why large law firms may not want to take on major anti-gay cases. Firms compete for top graduates and recent law clerks in their hiring process, and most new lawyers come from an age group that overwhelmingly supports marriage equality. Eighty-one percent of people aged 18-29 support marriage equality, according to a Washington Post/ABC News poll. Given that the kind of work (and the kind of jobs) offered by one major law firm can typically be done just as well by dozens of of other large law firms, the fact that a firm is also engaged in anti-gay defense work can easily be enough to push clients and potential hires into another firm’s arms.

The ABA Journal adds:

And in 2011 Foley & Lardner saw its “corporate equality” score drop in a rating by the Human Rights Campaign because it represented a client opposing gay marriage. The firm received a perfect score a year later after asserting it would no longer represent gay-marriage opponents.

Is it the case that firms that defend bans on same-sex marriage are toxic? Let me make an aside point. Of late, I have been growing increasingly apprehensive about the level of acrimony directed towards lawyers who defend same-sex marriage bans. Regardless of what you think about the merits (remove yourself from the legal bubble for a moment), in nearly every state, the majority of people oppose gay marriage. Structuring the debate to scorn the hundreds of millions of Americans who take this position may be priming a serious backlash. This is the fear that Justice Ginsburg has warned about. Moving too far, too fast, can backfire. And I write this as someone who firmly believes in marriage equality. While this path may bring marriage equality quickly, it could seed long-standing resentment against true equality embraced by all. For some other examples, see the Roe backlash, which animates much of Justice Ginsburg’s concerns. Three decades later, the fight over abortions in America is fiercer than ever.

Back to the story at hand. The Desert News also has an explanation of how and why Schaerr was selected:

“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said.

Also Thursday, the Utah State Tax Commission decided that married same-sex couples in Utah may file joint state income tax returns — a change from an earlier state position that would not have allowed them to file as married.

Schaerr’s hiring ended Reyes’ two-week search for outside counsel, which included an extra week due to a lack of responses. A dozen applicants ultimately vied for the job.

“Lack of responses.” Can you imagine? Usually Supreme Court advocates fall over themselves to fight for high-profile constitutional law cases. But not this one (as I noted in an earlier post).

So what awaits Schaerr afterwards, as Winston will not take him back? Apparently a fellowship at the Sutherland Institute, a conservative think tank in Salt Lake City.

“Gene Schaerr is an elite Supreme Court and appellate expert. He is from Utah. He understands our unique history and community,” Reyes said.

Also Thursday, the Utah State Tax Commission decided that married same-sex couples in Utah may file joint state income tax returns — a change from an earlier state position that would not have allowed them to file as married.

Schaerr’s hiring ended Reyes’ two-week search for outside counsel, which included an extra week due to a lack of responses. A dozen applicants ultimately vied for the job.

What will the Smithsonian Institute write about him, if anything, when archiving the case of  Kitchen v. Herbert?


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Jan 21, 2014

Gascho v. Global Fitness Holdings, LLC (S.D. Ohio)

I have filed an objection in Amber Gascho, et al., v. Global Fitness Holdings, LLC (S.D. Ohio), a class action case stemming from a gym membership I signed up for while living in Louisville, Kentucky. I am represented by Adam Schulman of the Center for Class Action Fairness. I will avoid commenting on the litigation here, but I have embedded my Declaration, my notice to appear, and the objection itself. I will post any more documents concerning this litigation.

Urban Active Objection Final Final

Urban Active Notice of Intent to Appear

Urban Active Blackman Declaration – Redacted1

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Jan 21, 2014

Changes at the Volokh Conspiracy on Washington Post, and to Legal Blogging

Eugene Volokh, in his introductory post, notes that the conspirators new home may change, somewhat what they write. Not in terms of any editorial control from the Washington Post, but a change in reflected how the writers approach their own audience.

This having been said, we recognize that a few things will change, not because of their demands but because our attitudes to blogging will change in some measure. When someone else’s brand is at stake in what you write, you think about that before writing.

I don’t think this will make us shy away from controversy — that’s not our temperament — but it might lead us to cut back on a few of the more personal posts (though I’ll never cut back on the math puzzles). Still, on balance I expect that this will be a very slight effect. We blog because we have things we want to say, and having thePost platform will, if anything, make us more likely to want to say them.

So what will this look like? From my limited experience, when I guest-blogged at Volokh or Concurring Opinions or elsewhere, I did modify my style.

First, I take a lot more time to make sure my posts are perfect. I proofread them maybe 3 or 4 times as much as I do a post here. If I make a mistake on JoshBlackman.com, I’m not so worried. My readers know my style, and it’s my brand. But when I’m using someone else’s site, I am much more careful.

Second, I try to be a little more moderate in my tone than I usually would. My audience tends to know my style, my humor, and my quirks. I will sometimes make a joke with that assumption. Those assumptions are out the window with a bigger audience (I find this quickly in the comments when I toe that line).

Third, I found myself explaining things in much more detail than I do at my own blog. With a broader audience, I suspect there is a wider percentage of non-lawyers, and even lawyers who aren’t academics, reading, and I felt obligated to go into much more depth. The corollary of that is in order to go into a really tough topic, my posts had to be really, really long–which people tend not to read. It’s a hard trade-off.

Fourth, because of all the things I mentioned above, blogging takes more time. So much time, that I found myself cutting back on the number of topics I covered during my brief stints at each site. I didn’t want to peck off a quick 5 minute post, so instead I focused on several larger posts.

The audience for Washington Post (90th highest rank in the United States) is staggering. I will keep a close eye on the site, and monitor any subtle changes I see. Eugene insists his puzzle posts will remain. But what about Somin’s science fiction and baseball posts? And I suspect David’s Israel posts will be received by a much different audience. Further, will readers be interested in the inevitable blogging feuds between Orin and Randy/Ilya/Jon/etc. over the constitutional issue of the day? Some of these exchanges go back and forth a dozen times. Will that same rapport remain?

Also, there is an important, unstated boost for all legal bloggers. The incentive to get a cross-link from Volokh/WaPo has just multiplied by a lot. Today, a link from Volokh, or Instapundit, may generate a few thousand hits in a day. That benefit will increase significantly.

There is also the issue of the paywall. I have been flirting with paying for a WaPo subscription for some time. I already pay for the Times, and it seems annoying to have to pay for two newspapers, but Volokh may push me over the threshold. Plus, with the addition of Radley Balko, who will also probably sit behind a paywall, the balkanized internet emerges (a strong net neutrality irony there).

Speaking of which, what is the next legal blog to be acquired? Will Balkinzation join the Atlantic? SCOTUSBlog was rumored to be acquired by Bloomberg? Maybe Concurring Opinions is absorbed by Forbes? Let the consolidations begin!

Congratulations Conspirators! I look forward to your new home!

Update: This post by Orin from 3/13/06 about his “new venture” at OrinKerr.com may be relevant:

I’ve decided to experiment with a new blog. Starting today, I am splitting my time between the Volokh Conspiracy and a new solo blog, OrinKerr.com. I imagine the new blog as a kind of “lawyer’s lawyer” blog; all of the posts will be about the law, with an emphasis on current legal debates and a broader perspective on the legal academy and the legal profession. I’ll continue to blog here at the VC about general topics, but my legal posts normally will appear only at the solo blog.

In case you’re wondering, I’m trying this experiment for two reasons. First, I find myself increasingly drawn to more legal and less political blogging topics, and I’m not sure I like the juxtaposition of the two that is common at the VC. I gather lots of readers like the combination — the VC’s sitemeter stats are proof enough — but for a range of reasons I’m interested in creating a sharper divide between the two. The new blog will have a much smaller readership than the VC, but I’m not sure that’s a bad thing.

Second, starting a new blog will let me try a new approach to comments. At the new blog, most comments will be by invitation only. I explain the details in my first post, but the idea is to promote comments by a specific group of legal experts and commenters rather the general public. This isn’t very populist of me, I realize, but I think it fits the focus of the new blog: Comments can add tremendous value to a blog post, but legal experts and informed commenters tend to add the most value to blog posts about the law. Of course, my posts here at the VC will continue to be open to all.

Anyway, the plan is to try the new blog for a month or two and see if I enjoy posting there. If it doesn’t work out, I’ll fold up shop and post exclusively at the VC.

Orin’s comments reflect some of the issues I addressed above.

As of now, OrinKerr.com is not active.

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Jan 21, 2014

Volokh Conspiracy Joins The Washington Post

The Conspiracy is taking over!

The Washington Post today announced a partnership with The Volokh Conspiracy, a blog that covers law, public policy, politics, culture and other topics.

Eugene Volokh, a law professor at UCLA, founded the blog in April 2002, and it quickly became a regular destination for Supreme Court junkies, academics, and anyone interested in law and national issues.  Most of the contributors are law professors, and include some of the top legal scholars in the nation.

Their expertise covers free speech, religious freedom, guns, criminal procedure, environmental law, business law, national security law, and much more.  Some of the contributors also have extensive records in government service, and in high-profile Supreme Court litigation: they include a former federal judge; one of the chief architects of the challenge to the Affordable Care Act individual mandate; a former general counsel for the NSA and former Assistant Secretary for Policy at DHS; and a member of the Presidential Commission for the Study of Bioethical Issues.

Volokh.com already redirects to http://www.washingtonpost.com/news/volokh-conspiracy/

Ezra Klein out. Randy Barnett in? I’ll savor that Obamacare irony for a moment.

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Jan 21, 2014

Constitutional Places: Marbury v. Madison

Tomorrow, I initiate another rite of passage for law students, and will be teaching Marbury v. Madison. In honor of this solemn occasion, here is a photograph of the Forrest-Marbury House in Washington, D.C.,  which was acquired by William Mabury in 1800. The house would remain in the Marbury family for the next century. It currently serves as the Embassy of Ukraine, located at 3350 M Street NW in Georgetown (not far from the Key Bridge).


There is a plaque in the front commemorating the location:


And here is the original copy of the opinion.


Thanks to Max K. for the photographs of the house.


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Jan 21, 2014

Hobby Lobby, RFRA, and a “Private” Establishment Clause

Professor Gedicks graciously offered three probing responses to my post on his WaPo Op-Ed arguing that (in short) the government’s decision to sanction Hobby Lobby’s decision to not pay for contraceptives unconstitutionally imposes its religious beliefs on its employees. In this post, I will respond to some of Gedick’s points, and a raise a few more questions his thoughtful comments raised in my mind.

Before I do, I neglected previously to link to an article Gedicks and Rebecca Van Tassell published in the Harvard Civil Rights-Civil Liberties Law Review, titled “RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion.” Here is the abstract of that article:

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on such exemptions.

The heated religious-liberty rhetoric aimed at the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — a government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.

While it is likely that RFRA facially complies with the Establishment Clause, it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their healthcare insurance premium.

Neither courts nor commentators seem aware that a line of permissive accommodation prohibits shifting of material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.

The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of such RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti- contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.

Part I summarizes the legal mechanics of the mandate and briefly describes the three classes of anti-mandate plaintiffs — churches, religious nonprofit organizations, and for-profit businesses owned by anti-contraception believers. Part II details Establishment Clause doctrine that prohibits permissive accommodations that impose material burdens on third parties. Part III applies this rule to RFRA exemptions from the mandate, showing that the cost- shifting entailed by such exemptions violates the Establishment Clause. We conclude that the existing regulatory regime that exempts churches, accommodates religious nonprofits, and leaves for-profit businesses subject to the mandate is the proper balance of private and government interests in the radically plural society that the United States has become.

I will repeat here the emphasized sentence, which seems to be the most important turn in the article:

Neither courts nor commentators seem aware that a line of permissive accommodation prohibits shifting of material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not.

I’ll admit, before seeing this article, I was among those who were totally unaware that an argument existed that because of the Establishment Clause, the government cannot create an accommodation to allow an employers to shift costs onto their employees (through denying certain benefits) due to the employers religious beliefs.

The authors write:

When a legislature directly grants a specific “retail” permissive accommodation to a named class of religious adherents, it must comply with the Establishment Clause limit on negative religious externalities.99 It follows that when Congress indirectly grants permissive accommodations “wholesale” through a general statute like RFRA it must also work within Establishment Clause limitations.100

They argues that creating exemptions to RFRA would violate the establishment clause. In other words, the government providing an accommodation from RFRA to Hobby Lobby, because of Hobby Lobby’s religious beliefs (not required by Free Exercise), would in effect violate the Establishment Clause, because the government is sanctioning (in essence) an unconstitutional externality passed onto employees due to the employers religion. (I think I am stating this correctly).

They conclude in the article:

In short, the Court and academic commentators are united in disapproving permissive accommodations that generate negative religious externalities—that is, in condemning accommodations that shift significant financial and other costs of a religious practice from those who engage in it to those who do not.

All of the Establishment Clause precedents the article cite concern violations of the Constitution by government itself through passing and enforcing laws. The supposed violation of the Constitution at issue here is that a private employer is shifting costs onto employees due to the employers religious beliefs. The article connects the private conduct at issue in Hobby Lobby to the Establishment Clause (which only applies to the government) by positing that the exemption (sanctioning if you will) of this cost shifting is unconstitutional.

The reason why these exemptions would violate RFRA is, not because of anything the government is doing directly–such as passing a law telling employers they cannot force employees to work on the Sabbath. Instead, the unconstitutional conduct is based on what a private employer is doing–specifically shifting costs onto employees. For the government to grant this exemption–or more likely, for the Supreme Court to order the government to grant this exemption, would be unconstitutional, Gedicks argues.

First, as a prerequisite to considering whether the Establishment Clause places limits on the ability of private employers to shift costs to their employees as a result of the employers’ religious beliefs, I want to push a bit at whether there is state action. The article makes a fascinating case for what I would perhaps call a “private” establishment clause. This is the notion that, because private employers are subject to RFRA (a federal law), and seek to vindicate their arguments in federal court, they have effectively become state actors if the government grants them an exemption. As Professor Gedicks wrote in a comment, “a RFRA exemption for Hobby Lobby would indeed involve federal government action, and not just private action.” In other words, the conduct of private employers, exempted by the government, raises an establishment clause violation

This is somewhat reminiscent of the argument made in Shelly v. Kraemer: racial covenants could be written,  but if home owners sought enforcement of their contractual rights in court, they were employing the long arm of the law to implement them, and thus there was state action, bringing the action under the auspices of the Fourteenth Amendment. That argument–perhaps an exigency of the nascent Civil Rights movement–was never held to any scrutiny, largely because the Fair Housing Act now handles most of that type of litigation. But I always ask my students, how is it possible that seeking to vindicate a right in court transform you into a state actor. If that is the standard, who *isn’t* a state actor.

To borrow an unfortunate line from earlier ACS litigation, what is the limiting principle? If RFRA seeks to protect certain rights of free exercise, is seeking an exemption from a law that infringes those beliefs enough to transform the employers actions into state action, now bound by the Establishment Clause? If so, that is a very dramatic concept. This would, in effect, bootstrap an establishment clause challenge to a suit for a RFRA exemption. You can imagine that often seeking to exercise your religion may have an impact on someone else’s wallet. I need to wrestle further with the idea that granting exemptions violates the establishment clause because of the actions private employers take, but I’ll assume this is the case for now.

I’ll respond briefly to Professor Gedick’s other points concerning Title VII. Has there ever been case in where any court found that a religious employer denying an employee contraceptives violated Title VII? I understand that employers  have to reasonably accommodate the religious beliefs of employees. But do employees have to reasonably accommodate the religious beliefs of their employers?

Of course, if a religious employer creates a hostile work environment due to excessive preaching, or discriminates based on religion by only requiring employees of a certain faith, that is prohibited. But here we have it in reverse. The traditional case considers whether an employer can force an employee to work on Sunday. The authors write about the Court’s invalidation of a state law “granted employees an absolute right not to work on their chosen Sabbath, irrespective of the costs their choices might impose on their employer and co-workers.”

The statute invalidated in Thornton generated what economists call a “negative externality”—“a cost that one person, firm, or group imposes on others without their consent.”54 By giving employees an unqualified right not to work on their chosen Sabbath, the statute “externalized” the cost of accommodating Sabbath observance from the Sabbath-observing employees to employers and other employees who didn’t observe a Sabbath. This, the Court held, violated the Establishment Clause.

The SG makes a similar point in its brief (p. 39):

The court of appeals believed that the interests of corporate-respondents’ employees are entitled to no weight under RFRA, opining that “[a]ccommodations for religion frequently operate by lifting a burden from the accommodated party and placing it else- where.” Pet. App. 60a-61a. But this Court has never permitted a secular employer to obtain a religious accommodation that comes at the expense of employ- ees.9

9 Indeed, the Court has held that, under certain circumstances, an accommodation that imposes burdens on employees can violate the Establishment Clause. Compare Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708-711 (1985) (holding that statute requiring employers to accommodate an employee’s Sabbath observance without regard to the burden such an accommodation would im- pose on the employer or other employees violated the Establish- ment Clause), with Amos, 483 U.S. at 334-340 (concluding that Title VII’s exemption for religious employers from its prohibition on religious discrimination does not violate the Establishment Clause as applied to non-profit activities of a church).

But let’s consider the mirror image of that case. Instead of an employer requiring his employees to work on Sunday, the employer shuts down on Sunday due to a newfound religious conviction. As a result, an employee who previously worked on Saturday and Sundays, and could only work on weekends, has now had his hours cut in half. (Of course the employee could choose to work elsewhere where more hours are available, or work during the week, but under this frame, that is not material). This is, in Gedicks words, a material cost shifted to the employee as a result of the employers religious beliefs. In fact, having eight hours of salaries cut from a salary is *much* more significant than being denied the cost of contraceptives for the overwhelming majority of employees. Would this result in a violation of Title VII? This is the difference between an employer having to accommodate a religious employes religious beliefs, and an employee having to accommodate an employers religious beliefs. The argument advanced in the article would thus impose something a “private” establishment clause.

Granted, keeping your store open on Sunday is not required by any law (though some laws require their closures). But before the ACA, providing contraceptives was also not required. Let’s say a state passed a law requiring that stores that service a certain number of customers a day must be open seven days a week, in order to promote the general welfare under the police power. A narrow religious exemption is made for churches, but not for religious-owned businesses. If the government handed out an exemption to, let’s say a Kosher butcher shop that closes on Saturday, would this violate the Establishment Clause? Certainly employees would gain additional salaries as a result of this new law, by being eligible to work on a Saturday (though there may not be many customers). Wouldn’t this law create a new “baseline”?

Which leads me to the final point Professor Gedicks made, which I think is the meta issue lurking in aisles of Hobby Lobby.

I wrote:

Hobby Lobby is not some mere private actor, but is in essence a cog in the federal machinery that guarantees healthcare to anyone. Employees should no longer treat health insurance as some sort of benefit, but now must demand it–and the employers’ religious liberty should not stand in that way. … The significance of Hobby Lobby, I have come to realize, goes far beyond RFRA or birth control pills. Instead, the ruling would either legitimize or challenge the consolidation of the relationship between the individual, the employer, and the state, under the auspices of the ACA, in a way we have not yet seen.

Professor Gedicks replies that the ACA does no more than “the Social Security Act (funded 50% by mandatory employer payroll taxes), the Fair Labor Standards Act (mandating payment of minimum wage), the Family and Medical Leave Act (mandating job protection for specified employee leaves), or any number other federal laws that dictate minimum employee compensation and benefits.” After I wrote the post yesterday, and before I saw the comments, I started thinking more about Social Security and other laws that regulate the employer-employee-government trinity.

On that point, Joey Fishkin has an important argument that the article alludes to.

Some Mandate opponents have argued that RFRA exemptions for anti-Mandate employers would not shift costs to employees, because employees of RFRA-exempted employers are no worse off than they would have been in the absence of the Mandate—employees in both situations must use their own funds to purchase contraceptives. This makes no sense. It is like defending a denial of Social Security benefits by observing that it merely puts the disappointed claimant in the same position he or she would have been in had the Social Security program never been enacted.107 The problem, of course, is that we do not live in a world in which Social Security does not exist; Social Security has been enacted, and its enactment created a social welfare entitlement whose denial to any particular claimant deprives him or her of its benefits.

We are now living in a new world. The ACA created a massive new entitlement with a new “baseline.” Health insurance is now a condition of employment. It was not before. Previous laws governing the terms of employment–such as FMLA, FLSA, etc.–go to the actual terms of the job: what are you doing, and what and how are you getting paid, etc. The ACA mandates a new benefit (or if you like Marty Lederman’s argument, imposes a tax on not giving benefits), totally apart from the terms of employment. Sure, if an employer offered a pension in the past, it was governed by ERISA. But there is no requirement to offer pensions.

The stakes here are significant. If this argument is taken to its logical conclusion, it could create a private establishment clause, whereby an employer’s ability to run his business will be constrained not only by regulations requiring him to do certain things that may violate his religious beliefs (short of a free exercise claim), but also he must operate his business so as to prevent his own religious beliefs from shifting externalities employers. This represents a significant responsibility on behalf of an employer to provide for his employees, even if it conflicts with his religious beliefs, in a way that has not been done before. Putting aside the link Gedicks makes between the employer and state action, here the new constitutional burden would fall directly on the religious employer.

Lots of interesting food for thought here. I appreciate Professor Gedicks engaging the topic.

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Jan 21, 2014

The Strategery of Eliminating the Point after Touchdown

NFL Commissioner Roger Goodell floated a fascinating proposal–eliminate the point after touchdown. Why?

“The extra point is almost automatic,” Goodell told NFL Network. “I believe we had five missed extra points this year out of 1,200 some odd [attempts]. So it’s a very small fraction of the play, and you want to add excitement with every play.”

Now the choice is go for a one-point automatic kick, or try for a difficult two-point touchdown conversion. The replacements could create some really interesting strategize decisions.

Goodell said one suggested proposal involved a touchdown being worth seven points instead of six, with the potential for an extra play from scrimmage that would yield an eighth point. However, “if you fail, you go back to six [points],” Goodell explained.

The commissioner did concede however there are still some roadblocks to any such change. Goodell posed the question, “Is that going to discourage people from going for two?”

So now there would be different choices. Do nothing after the touchdown, and keep your seven points. Attempt to get the ball in the end zone again. If you do, you get one extra point and go to eight. If you don’t, you lose a point, and are stuck with six. This would, in effect, replicate the possible point distributions we have now (6 points, 7 points, or 8 points). The point-after-touchdown is so automatic there may be no sense in actually requiring teams to do it. Just give it to them and let them kick off.

But the alternate incentives makes the risk of going for two more difficult. People are very risk adverse. The prospect of gaining one point at the risk of losing one point is probably too much for coaches to stomach. Think of how seldom they go for it on fourth down, even though statistics show they should most of the time. (See the interesting Fourth Down Bot). I suspect very few coaches would take advantage of the two-point conversion, unless (as usual) it is at the end of a game and they need those additional points to tie or win. Though you can imagine a case where 7 points would tie it, 8 points would win it, and 6 points would lose it. Can you imagine any NFL coach going for 2 here? The game could be tied, headed to overtime, but you decide to go for two and fail. Prospect theory would not save the coach.

I suspect tradition will maintain the status quo, but these changes would add some additional strategery to the outcome of games.

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Jan 21, 2014

Biden: “I never thought we’d be fighting the fight again on voting rights, I really didn’t.”

Apparently the other constitutional law lecturer in the White House (yes, Vice President Biden lectured for years at Widener Law School) also didn’t read NAMUDNO. Anyone who did should have known that simply leaving the Voting Rights as is would lead to another Supreme Court decision about it.

I’ll repeat the question that Rick Hasen posed:

Ironically, I think if this were the bill introduced in 2006 to amend the VRA, it would  not only have passed both Houses of Congress and become law, the Supreme Court would have been very likely to uphold the measure as constitutional despite its constitutional problems.

As an aside, a former colleague told me she took Biden’s class at Widener. She relayed that he showed up once or twice during the semester, and just told some stories. He didn’t actually teach anything. Unsurprising in light of his own law school prowess, where he plagiarized his law review article, and graduate 76th in his class of 85 at Syracuse University College of Law.

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Jan 21, 2014

Darwin Award Nominee: Man Posing for Photos On Train Tracks Killed By Train


A man was hit by a train as he posed for pictures taken by his female friend over the weekend.

The Las Vegas Sun reports that the man was musician Jeff Ray, a member of the Jersey Boys band.

The 42-year-old Las Vegas man was sitting on the rails in Auburn, Washington while his friend snapped pictures with Mount Ranier as a backdrop when he was hit by an Amtrak Cascades train on Saturday.

What makes this story so surreal is that South Park had an entire bit about people getting killed by trains while posing for memes.

Another nominee would be the guy who fell into a freezing river in Chicago to retrieve his cell phone. Then his two friends followed him into the river. One died.

One young man is dead, and a woman is missing  and presumed dead after both fell into the freezing Chicago River trying to find a dropped cellphone early this morning.

A third man, who also ended up in the river, remains hospitalized.

Chicago Police say a 26-year-old man dropped his phone into the water, and slipped along the icy riverwalk trying to retrieve it.

A 23-year-old man and a 21-year-old woman, who were with the man, entered the water trying to help him. Witnesses called 911, and rescue crews pulled the two men out of the water but have not been able to find the woman.


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