I don't think anyone on this list would advocate "a full-fledged trial on Catholic moral theology." I certainly wouldn't. What I have been suggesting, instead, is that courts might look to the objector's own conduct to see if it is reflective of a religious commitment that would be substantially burdened if an exemption were denied. Moreover, the government might ask whether the objector has at least articulated a facially plausible explanation of why being compelled to engage in the conduct in question would impose a materially different and more severe burden on religious exercise than the conduct in which the person or organization regularly engages without any notion that it results in "proximate material cooperation with evil." The objector doesn't have to persuade the court (or in this case HHS) of the correctness of its religious view and of the viability of such distinctions. But it can't really be enough (can it?) for the court to accept Eugene's view that it must assume a "substantial burden" based on the objector's mere say-so, in a case where its dollars or resources are used, down the line and pursuant to intervening "genuine and independent private choice" (Zelman, Agostini), for activity that the employer finds morally objectionable, and where the employer regularly allows its resources to be used for those same foreseeable ends in other contexts.
Quite honestly, my principal objective here is not to resolve the RFRA question, but instead to ask, at an earlier point in the process, why the state should grant the requested *permissive* accommodation in the first instance and, perhaps more importantly, to prompt thoughtful people within the Catholic tradition to give further consideration to whether this would, in fact, be a case involving proximate material cooperation with evil under Catholic doctrines, in a way that seemingly analogous uses of employer resources would not be -- and, if they conclude that it is, to explain to the state and to the public why the logic for granting the exemption here would not also counsel exemptions whenever employers have moral objections to requirements that their resources be used in certain ways, and whenever taxpayers object to the use of their money by the state. These are very hard questions. And what I am suggesting here undoubtedly would raise its own quite perplexing problems. But I can't believe the only workable answer to the difficulty is for the state always to accept the objectors' claims of *substantial* burden at face value, no matter how implausible such claims might appear in light of the objector's own conduct. After all, the objector is asking for an exemption that would harm third parties. The least the state could do, I would think, is presumptively to insist that the objector itself have demonstrated a willingness to bear that same level of cost, at a minimum, in the service of its religious commitment. On Tue, Feb 14, 2012 at 12:13 PM, Christopher Lund <l...@wayne.edu> wrote: > 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 > -- > 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 . . > . **** > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
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