I agree with a lot of this, and I share with Marty some of the same
confusion and interest. But Marty's post reveals where it will lead-it
seems to take courts right into a full-fledged trial on Catholic moral
theology. The Catholic Church will be on one side. The government will
be on the other, supported by Catholics unhappy with the church's position
on this.
Both sides will claim to have the right reading of Catholic moral theology
and the right conceptions of "cooperation," "material cooperation,"
"remote versus proximate material cooperation," and "intrinsic immorality"
within Catholic moral theology. They will introduce evidence to support
their readings; they will argue about the true meaning of the Bible,
Aquinas, and Evangelium Vitae. Both sides will have to account for
various irregularities-exceptions made or implied by history,
hypotheticals suggesting logical inconsistency which then in turn suggest
bad faith and insincerity. Both sides will accuse the other of
inconsistency and dishonesty.
Marty gives a good example: Dissenters from the Church's position will
point out that the Catholic Church currently subsidizes abortions by
paying salaries to women who might go out and get them. The Church will
say that it's not inconsistent. Perhaps the Church sees a difference in
intent; it does not know whether any employee will get an abortion, it
knows that that's the point of an insurance rider covering abortion
services. Or maybe it's that the Church cannot effectively control its
employees in this regard without sacrificing other important religious
interests, but it can control decisions about insurance. Or maybe the
Church would rather accept some inconsistency than cease to exist-after
all, a Catholic Church unable to purchase goods or services (which always
raises the possibility of immoral subsidization) would be unable to
function. Our law has been entirely unable to come up with a general rule
about when we are responsible for the acts of others. Supreme Court
Justices regularly mock the whole idea of "proximate cause." See Pacific
Operators Offshore v. Valladolid, __ U.S. __ (Jan. 11, 2012) (Scalia, J.,
concurring) ("To be sure, proximate cause is an imperfect legal doctrine;
I have no illusions that its tenets are easy to describe or
straightforward to apply. Judicial opinions do not provide a uniform
formulation of the test, and borderline cases are rarely clear. But it is
often easier to disparage the product of centuries of common law than to
devise a plausible substitute."). (Valladolid is not alone, see the
various opinions in CSX Transp., Inc. v. McBride last term for some more.)
But yet we should expect the Catholic Church to be perfectly consistent in
an area where the law is totally uneven? And when they can't do it to our
satisfaction, that makes them insincere or proves their religious beliefs
too inconsistent to be unworthy of accommodation?
If we go this way, the whole issue will end up being which side has
departed from doctrine. The court will have to judge that. If it rules
against the Bishops, it will have to then decide whether the Catholic
Church has the right to change its doctrine. (It doesn't?) This sounds
like Mary Elizabeth Blue Hull to me.
Best, Chris
___________________________
Christopher C. Lund
Assistant Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI 48202
l...@wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Website-http://law.wayne.edu/profile/christopher.lund/
Papers-http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Tuesday, February 14, 2012 9:18 AM
To: Walsh, Kevin
Cc: Law & Religion issues for Law Academics; Crowley, Donald;
conlawp...@lists.ucla.edu
Subject: Re: RFRA substantial burden analysis
What Chip and I -- see my Mirror of Justice post here:
<http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-question-from-
marty-lederman.html>
http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-question-from-m
arty-lederman.html -- have been trying to get at is that the state should
not simply accept as a given that "the College's sincerely held religious
beliefs prohibit it from providing coverage for contraception,
sterilization, abortion, or related education and counseling."
It's not that the state (or Chip or I) has a better understanding of
Catholic doctrine than does the hypothetical Catholic employer -- far from
it. But what the state does know is that every person's or employer's
dollars and other resources are used, every day, in various and sundry
ways (through taxes, wages paid, etc.), to support conduct that the person
in question believes is sinful, particularly when the particular use of
the $$ are determined not by the person (employer) herself, but by another
to whom she transfers the money -- in this case, the employee, whose
independent choice of how the $$ will be used breaks the chain of
responsibility and/or endorsement of the employer whose $$ they once were,
just as the State of Ohio was not responsible for the religious education
funded by the vouchers in Zelman and just as the school district in
Mergens was not responsible for, and did not endorse, the religious
content of the student activities compelled by the Equal Access Act. The
employee can and does, for example, use the employer's wages, phones, and
computers to procure contraception . . . and abortions. And the state
uses the employer's tax dollars to do many things that the employer would
not itself do because of moral or religious injunctions -- just as it
regularly uses my dollars, and yours, in ways that we find religiously or
otherwise indefensible . . .
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