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] 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 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 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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