I have to admit that as long as we are talking about private resources, I have a hard time understanding the argument that there is no burden on religious institutions here. The private resources of religious institutions are dedicated to conduct obligated by or at least consistent with religious beliefs and doctrine. How can it not be a burden on the institution's religious liberty for the state to require those resources to be used in a way that violates the religious principles to which the institution is committed.
As for the analogy to taxes, I have always though there was a burden here -although it is attenuated, difficult to mitigate, and probably overridden by important state interests. But wouldn't a tax imposed on a class including religious institutions that was earmarked for a specific purpose -such as providing contraceptive services-raise a more difficult question? Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Monday, February 13, 2012 5:50 AM To: Marc DeGirolami Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law & Religion issues for Law Academics; Con Law Prof list Subject: Re: Contraceptives and gender discrimination On the burden question -- Religious entities may limit hiring to co-religionists, and then make their best efforts to enforce religious norms against employees. Doesn't that option make the burden of the HHS policy far less substantial? I think a common reaction to the religious liberty claim being advanced here is its leveraging effect on employees who are not of the faith. So even if some faiths have a religious mission to serve others, do they similarly have a religious mission to employ others? Or is it their religious mission to impede access to contraception by all, whether or not of the faith? If it's the latter, I don't know why their position is any different from or stronger than taxpayers who don't want to to support what they see as immoral activity by their government.
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