Alan, I'm not denying the sincerity of those who truly see this as a religious liberty issue. I'm just saying that there are also many people in the political arena on this issue who are just crying crocodile tears. My concern is with the consistency of logic behind the argument from religious liberty. How do you feel about my hypo? Can the government demand certain standards of accepted medical practice in exchange for a flow of funds to a religiously affiliated hospital? If so, is that a more acceptable infringement?
_____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, February 13, 2012 11:25 AM To: Law & Religion issues for Law Academics Subject: RE: Contraceptives and gender discrimination Any legitimate issue can be manipulated politically. That doesn't stop it from being a legitimate issue. There is a religious left in this country. It frequently takes liberal positions on culture war issues. Many of its members believe the "contraceptive services" mandate raises a serious religious liberty issue. Those of us who take this position certainly should be prepared to have our views challenged on the merits. But it is more than a bit disconcerting to be lumped together with Obama's opponents as "painting this as an assault on religious liberty." This issue has been litigated in state courts a decade ago. It was a religious liberty issue than and it is a religious liberty issue now. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Monday, February 13, 2012 12:51 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Contraceptives and gender discrimination What if a hospital is run by a religious group that believes doctrinally and sincerely in not using advanced technology or extraordinary interventions to prolong human life. In response, the government says, no, if you want to receive federal funds, you'll employ conventional medical standards and treatments. This burdens the institution's religious liberty by requiring it to use resources in a way that violates its religious principles, doesn't it? Yet in this case, it's highly doubtful that there would be any hew and cry about the sect's religious liberty. Obama's opponents and the Catholic hierarchy have done an effective job painting this as an assult on religious liberty. But let's be honest, this is really about controversial (i.e., those that remain part of the culture wars) v. non-controversial government mandates. If a religious group chooses to operate in the public sphere by running hospitals and universities, it gives up some of its claim to be free of generally applicable government policies and regulation. I had thought that principle was reasonably well settled. Some might say, "well yes, if the religious group is running a McDonald's franchise, that's different." But why should profit or tax status be the relevant consideration? Steve Sanders _____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, February 13, 2012 10:27 AM To: Law & Religion issues for Law Academics Subject: RE: Contraceptives and gender discrimination 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
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