Brian raises an important question: I think Catholic Charities, like many religious institutions, will have to make a choice at this point, one that they have been pushed to by the law for the past three decades; do they want to continue receiving public monies, in which case they may have to describe themselves as secular organizations, or do they want to proclaim their religious character, get the exemption, and then lose the funding. (Alternatively, I suppose they could just drop drug coverage for their employees, but they claim that would be unjust.) My hope is that they will do the latter, with the unintended (?) consequence of the law being that a lot of disadvantaged people will lose support. (Unless funding is supplied by private donations...)
Richard Dougherty University of Dallas Brian Landsberg wrote: > The question posed was whether Catholic Charities were "religion." If > so, they would have qualified for an exemption from the rule. > > If they are a religion, as they insist, should that affect their > eligibility to participate in state and federal programs? > > >>> [EMAIL PROTECTED] 03/02/2004 6:20:00 AM >>> > Several postings have suggested that any accommodation that imposes a > burden > on third parties is unconstitutional. Why should this be so? A failure > to > accommodate burdens the rights of religious individuals or > institutions. Why > should there be an inflexible rule that where there are unavoidably > burdens > on one party or the other, the burdens must inevitably be borne by the > religious side to the dispute? In this regard it should be noted that > in the > California case, the burden on Catholic Charities was one of principle, > the > burden on employees was merely financial (They had to pay for their > own > contraceptives; Catholic Charities was not firing persons who used > contraceptives). What is it (except ,perhaps ,deference to the > democratic > process) that makes all seem to assume that even in this context, the > burden on religion must yield to the secular burden? > Marc Stern > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] Behalf Of > [EMAIL PROTECTED] > Sent: Tuesday, March 02, 2004 8:49 AM > To: [EMAIL PROTECTED] > Subject: Re: Locke v. Davey and expanded free exercise rights > > I think Alan has made an interesting point here. The footnote states > that > "at least in some respects, [Washington's] constitution provides > greater > protection of relgious liberties than the Free Exercise Clause." > First, I > don't think it is unconstitutional for state constitutions, anymore > than the > First Amendment, to require strict scrutiny in certain circumstances, > so > long as there is an establishment principle at work as well. The goal > is a > balance of power between church and state, and that can be achieved > via > different calculations. There is no state that provides strict > scrutiny in > every circumstance under its state constitution, just as there was > never a > rule at the Supreme Court that strict scrutiny applied in every > circumstance. It is beyond cavil that such a regime is intolerable. > This > footnote would have worried me had it spoken approvingly of a regime > in > which every law affecting religious entities is subject to strict > scrutiny. > > Second, the footnote is speaking to judicially crafted interpretations > of > the free exercise clause. It does not speak to the proper conditions > for > legislative accommodation. Proper legislative accommodation requires > a > weighing of the special privilege to avoid the law against the harm to > the > public interest. The sort of blind accommodation at the base of RFRA > and > RLUIPA made it impossible for members of Congress to engage in this > calculus. The failure to consider the public interest and to only > focus on > the benefit to religion shows that the law has an improper purpose. > > Marci > > Sorry for not being clearer, Marci. I'm not focusing on the holding in > Locke but only on the note about expansive free exercise rights under > the > Washington constitution. I thought from some earlier posts quite a > while > back that you believed that religious exemptions that were not limited > to > specific problems violated the Establishment Clause -- and that this > was > one of your concerns with RFRA and RLUIPA. These laws created across > the > board exemptions, not a situation specific exemption. They applied to > too > many different activities and circumstances. (I may have gotten your > position on this wrong. Obviously, if I did the rest of my question > will > not make a lot of sense.) > > State constitutions that provide broader and more rigorous protection > for > free exercise rights than the federal constitution seem to me to accept > an > across the board standard for religious exemptions. They typically > apply a > rule that requires some form of rigorous review to laws or individual > assessments that substantially burden the exercise of religion. I > would > assume that if a state statute that creates an across the board > exemption > violates the Establishment Clause, a state constitutional provision > that is > interpreted to apply a similar exemption standard would also violate > the > Establishment Clause. > > I read Locke as commenting favorably on the expansive protection > provided > by the Washington constitution's free exercise clause. The Court seemed > to > suggest that play in the joints applied to both free exercise and > establishment clause values and that the fact that the state provided > greater protection under the state's free exercise clause than the > federal > constitution required helped to justify the Court's establishment > clause > holding. > > I don't suggest that these state constitutional interpretations are > identical to RFRA or RLUIPA. Merely that they apply broadly to laws or > individual assessments that substantially burden the exercise of > religion. > So my question is -- Do you believe that free exercise provisions in > state > constitutions that provide more rigorous protection than Smith and > apply > generally and broadly violate the Establishment Clause -- and if so, > does > the Court's language in Locke undercut such an argument. > > Alan Brownstein > UC Davis > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
