(1) If the contraceptive mandate was attached to a broad
government spending program - as best I can tell it isn't, but I'll be glad to
work with the hypo - then the question is how RFRA interacts with the
unconstitutional conditions doctrine, which of course treats some conditions as
permissible and others as not. I would think that, given Sherbert, RFRA would
apply pretty strongly even when the government is attaching conditions to
benefits, though it's hard to tell.
(2) It seems to me that "religious liberty" in the sense of a
right to exemptions and free speech/association are not on equal par as
constitutional rights. Indeed, Smith expressly holds that there is no right to
exemptions, and that the constitutional right is purely a nondiscrimination
right. Nor are RFRA and free speech/association on par; RFRA mandates weakfish
strict scrutiny with a substantial burden threshold, while the rules for free
speech/association are a mix of different standards - very strong strict
scrutiny with no burden threshold for content-based restrictions, intermediate
scrutiny with a high burden threshold for content-neutral restrictions, and
either some kind of strict scrutiny or maybe per se invalidation with a
moderate burden threshold (though one that might well be quite different than
the RFRA threshold) for expressive association. I drew the Rust analogy simply
to show that conditions attached to subsidies are very different from
requirements imposed on everyone who goes into business (or into some kinds of
business), not to suggest that the free speech rules and the religious
exemptions rules would be identical.
(3) In FAIR v. Rumsfeld, the Court concluded that there was no substantial
burden on the university's rights, because (a) the university remained free to
express whatever views it wishes (the free speech issue), (b) the right of
expressive association does not extend to a right to exclude visitors, as
opposed to members or speakers as in Dale (the expressive association issue),
and (c) the right to be free of compelled speech likewise did not extend to
this situation (the compelled speech issue). I think (a) and (b) are clearly
right but (c) is more questionable, but in any case that's how the unanimous
Court reasoned. So as to all these rights claims, the Court found no
cognizable burden, because the underlying rights did not extend as far as the
universities said they did.
But the substantial burden threshold under RFRA is different:
Requiring a claimant to do something that the claimant believes (for religious
reasons) that it ought not do, or forbidding a claimant from doing something
that the claimant believes (for religious reasons) that it ought to do, is a
substantial burden, and triggers RFRA strict scrutiny. That requirement just
wasn't present the same way in FAIR, because the burden threshold rules there
were dictated by the nature of the other rights involved.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Monday, February 13, 2012 1:26 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraceptives and gender discrimination
I'm not talking about a Rust v. Sullivan type government program that mandates
or prohibits specific speech, I'm thinking of the spending clause power to
attach conditions to government money. See, e.g., Grove City College.
Hospitals get all manner of govt funds through Medicare and Medicaid, research
grants, etc. So Eugene, would religious liberty be just as improperly
infringed if the govt required specific standards of medical care (my hypo) in
exchange for acceptance of government funding?
Another question: assuming that religious liberty and free speech/association
are on equal par as constitutional rights, isn't this really like FAIR v.
Rumsfeld? How is it different, other than the relative popularity (or
political exploitability) of the constitutional rights involved? Isn't the
burden here just as incidental and necessary as the burden on law schools was
in FAIR? If not, why not?
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, February 13, 2012 11:04 AM
To: Law & Religion issues for Law Academics
Subject: RE: Contraceptives and gender discrimination
Isn't there a difference here between (1) accepting specific
subsidies ("federal funds") that the government insists be used for behavior
that furthers specific government goals, and (2) "operat[ing] in the public
sphere by running hospitals and universities"? By way of analogy, consider the
Free Speech Clause. Rust v. Sullivan says that the government may insist that
certain funds be used to promote prenatal care and not abortion; and though the
holding is controversial as to that particular fact pattern, I assume it would
be uncontroversial as to most other funding programs. But it hardly follows, I
take it, that anyone running a hospital could be ordered not to speak out in
favor of abortion, or even some medical procedure that is not constitutionally
protected.
Eugene
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