The wars of religion were very much about the locus of religious authority. Men fought for, and men and women died for, the right to have a hierarchical church with teaching authority at the top, or a congregational church with ultimate authority in the lay people or in individual conscience, or a presbyterial church with authority in bodies composed partly of clergy and party of elected representatives.
Individual Catholics of course determine their own religious position for RFRA purposes, but for religious institutions, the duly constituted religious authorities decide. In Catholicism, those authorities are the bishops, and the right to have a church in which bishops decide is very much a part of the religious liberty guaranteed by the Religion Clauses. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Mae Kuykendall Sent: Monday, February 13, 2012 10:32 AM To: Ira Lupu; Marc DeGirolami Cc: Law & Religion issues for Law Academics; Con Law Prof list Subject: Re: Contraceptives and gender discrimination This explanation of the bishops' view from the NYT seems revealing of the actual goal: "The bishops will also renew their call for lawmakers to pass the “Respect for Rights of Conscience Act,” which would exempt both insurance providers and purchasers — and not just those who are religiously affiliated — from any mandate to cover items or services that is contrary to either’s 'religious beliefs or moral convictions.'” (The grammar belongs to the NYT, though I changed one typo.) The demand is pretty radical stuff, unless I'm missing something. It looks like an attack on contraception and a demand to be exempt from the general application of law--for anyone who provides medical care. Finally, taking so much government money seems to involve religious groups in potential issues about what they really believe. Since a majority of Catholics supported the original proposal (so polls say) and 98% use birth control, the question arises of who gets to say what the beliefs are. With the hierarchy, I am unable to credit the extent of the claim as being non-political. Hence, I see a rather wooden claim being made about religious liberty. It would be interesting to debate the original meaning of free exercise--as applied to claims of exemption from general law in connection with large, heavily funded, substantially "public" institutions that provide critical services and are influenced by an affiliation with a hierarchical church based elsewhere where the adherents do not share the hierarchy's dogma about the matter at hand. It would be hard to have a direct comparison, such as the attachment of a GPS tracker to a car. Last, and I hope someone reads this far, does anyone know if it's common for Catholic physicians to refuse to counsel patients on birth control? Do they refuse to prescribe birth control and send their patients elsewhere? Do non-Catholic physicians in Catholic hospitals have to advise patients that birth control is an "evil?" How strong is the enforcement of the doctrine at ground level? And do large Catholic hospitals have mainly Catholic doctors? I wonder how many of the hospitals have a majority of doctors, including Catholic doctors, who have no problem with prescribing contraceptives? If so, can a hierarchy really be the sole carrier of the beliefs around which a religious liberty claim would be constructed? Would I be wrong to think that the founders had individual liberty in mind, entirely without reference to hierarchical assertions of top-down belief edicts and, indeed, in opposition to the control over individual conscience of large, authoritarian church hierarchy? Isn't the quest for liberation from authoritarian church power a large part of our history and a big piece of the meaning of free exercise? Mae Kuykendall >>> Ira Lupu <icl...@law.gwu.edu> 2/13/2012 8:49 AM >>> 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. On Sun, Feb 12, 2012 at 9:51 PM, Marc DeGirolami <marc.degirol...@stjohns.edu> wrote: Before one gets to how compelling the state's interest is, one needs to make a judgment under RFRA about whether the burden is "substantial." Like Kevin, I'd also like to know how supporters of the mandate would characterize this burden as incidental, as opposed to "substantial," as the latter term is used in the RFRA. In the face of a claimant's sincere argument (if we may stipulate to sincerity) that the burden of complying with a regulatory scheme which coerces it to purchase a health plan that covers products and services as to which it has a conscientious objection is substantial (I am assuming that the alteration announced by the President on Friday retains this basic structure, though I am uncertain about that), what are the arguments that would be advanced to support the case for the burden's non-substantiality? Would supporters of the mandate rely on an understanding of Catholic theology? Would they claim that those who object have not understood well their commitments to the doctrine of "cooperation with evil" -- or some other religious doctrine -- and that courts are in a strong position to assess wh! ich rival understanding is the most plausible? RFRA, as amended by RLUIPA, forecloses an inquiry into the "centrality" of a particular belief or practice within a belief system as a means of determining the substantiality of the burden imposed on the claimant. What would a court rely on to conclude that, notwithstanding the sincere testimony of the claimant about the burden's substantiality, the burden was actually incidental? Marc DeGirolami -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin Sent: Sunday, February 12, 2012 9:11 PM To: Zietlow, Rebecca E.; Richard Dougherty; Marci Hamilton Cc: Con Law Prof list Subject: RE: Contraceptives and gender discrimination Suppose one accepts the argument about incidental burdens. What about the RFRA's "least restrictive means" requirement? See 42 U.S.C. 2000bb-1(b)(2). Do supporters of the contraceptives mandate concede that it cannot satisfy this part of the RFRA and fall back on the no-substantial-burden argument? If so, how does that argument go? Or is there instead an argument that forcing private employers with religious objections to offer a policy for "free" contraceptives is the _least restrictive means_ of providing access to low-cost contraceptives? Kevin Walsh ________________________________________ From: conlawprof-boun...@lists.ucla.edu [conlawprof-boun...@lists.ucla.edu] On Behalf Of Zietlow, Rebecca E. [rebecca.ziet...@utoledo.edu] Sent: Sunday, February 12, 2012 8:52 PM To: Richard Dougherty; Marci Hamilton Cc: Con Law Prof list Subject: RE: Contraceptives and gender discrimination No one is denying a constitutional right to birth control to women. Lack of access to insurance for birth control may effectively bar low income women who work for Catholic run institutions from obtaining birth control. However, as we all know, the government has no affirmative obligation to subsidize the exercise of any constitutional right. My point was simply that enabling those women to have effective access to birth control is a strong enough government interest to justify any incidental burden on Catholic run institutions imposed by the Obama policy. And, that this is an issue that uniquely affects women. And yes, birth control is often prescribed for reasons other than contraception, to treat medical conditions including hormonal imbalances etc. Rebecca Zietlow ________________________________ From: Richard Dougherty [dou...@udallas.edu] Sent: Sunday, February 12, 2012 8:40 PM To: Marci Hamilton Cc: Zietlow, Rebecca E.; Con Law Prof list Subject: Re: Contraceptives and gender discrimination Perhaps I am missing something major here. Is someone denying women their constitutional right to purchase birth control? Isn't the only question here whether women -- or spouses of men -- working for Catholic organizations, can get it for "free"? (Of course it won't be free for anyone, as everyone will be paying higher premiums; insurance companies aren't in the charity business.) Prof. Zietlow I think hit upon a very important aspect of this question. When Viagra was invented/discovered/popularized, and it got insurance coverage, that did prompt states to pass their requirement for birth control coverage. But one (not me) might argue that there was a medical disability that argued in favor of coverage (is ED covered under the ADA? I honestly don't know). I'm not aware of the comparable argument for birth control, but I am willing to be educated on it. Richard Dougherty On Sun, Feb 12, 2012 at 6:51 PM, Marci Hamilton <hamilto...@aol.com<mailto:hamilto...@aol.com>> wrote: Rebecca and Lauren are correct. The bishops are also opposed to constitutional rights for women and privacy rights generally. This is just another plank in their platform on these issues. It is worthwhile to keep in mind that this scenario involves constitutional interests on both sides at every level and there is a great deal at stake for women generally. To treat the organization's religious claims as though they are the only ones to analyze is a gross oversimplification Marci On Feb 12, 2012, at 7:23 PM, "Zietlow, Rebecca E." <rebecca.ziet...@utoledo.edu<mailto:rebecca.ziet...@utoledo.edu>> wrote: I agree with Lauren that there is a gender equality issue here. I understand that in 2000, the EEOC agreed as well, and issued a ruling that employers who provide insurance coverage for Viagra but deny coverage for birth control violate Title VII. The Con law issue is that apparently the Catholic church challenged this application of Title VII on free exercise grounds and lost in a couple of lower court rulings. The only thing different now is that the Catholic employers are being required to pay for coverage, but I think Obama took care of that issue with the policy modification on Friday (others may disagree). This whole scenario has striong implications for women's rights, including both sex equality concerns and the constitutional right to use birth control. Wouldn't the government's interest in protecting those rights be sufficiently strong to justify the Obama policy if it was challenged by the Catholic church as violating the FE Clause? Rebecca Zietlow ________ _______________________________________________ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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. _______________________________________________ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.