The references to Barnett and Yoder are misplaced. This case is closer to Bowen, Lee, and Lyng than to either of those cases. In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the burden found to be insufficient in those cases is direct rather than indirect.
The notion that courts don't find "substantial burden," because they are rooting for the government, which is Doug's explanation, is insupportable. "Substantial burden" is a legal term of art, not a measure of how the believer feels about the burden. The burden here is incidental to their religious beliefs, not direct or substantial. But let's look at this issue from a broader perspective. Do those favoring the employee here favor the following arguments as well? Jehovahs Witness business owner should not have to pay for coverage of blood transfusions Scientology business owner should not have to pay for coverage of mental health benefits LDS business owner should not have to pay for coverage for treatments that include caffeine Evangelical or Catholic business owner should not have to pay for coverage of MS treatments derived from embryonic stem cell research There is no principled way to distinguish these demands from the demands made in this case. I also would point out that Title VII forbids business owners from discriminating on the basis of religion. Granting the business owner the right to tailor medical care to his or her religious beliefs strikes me as an end run around that principle. The work place is supposed to be neutral as to religion. When the employer can tailor benefits to fit religious viewpoint, he or she is gerrymandering the employment market so that conservative Catholics are going to be more likely to want to work for conservative Catholics and non-Catholics are going to be more inclined to avoid conservative Catholic employers. Can businesses create an employment universe where their owners impose their religious beliefs on the terms of employment consistent with Title VII? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -----Original Message----- From: Marc DeGirolami <marc.degirol...@stjohns.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Sun, Sep 30, 2012 1:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate I wonder what sort of evidence Marty is looking for. What arguments qualify as “serious” arguments? And “serious” for whom? A “serious” argument is not necessarily an argument that one finds persuasive, though that might be the standard. It could instead be an argument that one disagrees with but that one finds plausible. Or perhaps not outrageous. Or is it instead one which the religious claimant takes “seriously,” even if the court does not? How should one measure the standard for seriousness? The standard that RFRA sets is not whether a court believes that the argument raised by the objecting religious claimant is “serious.” It is whether the claimant has alleged a substantial burden. Alleging a substantial burden does not require that the court gauge the seriousness of the objector, or his or her objection, or the degree to which the argument has achieved theological consensus, or its importance or centrality within the overarching system of belief. It does not demand the assent of a selection of theologians. After all, other theologians, at other conferences, surely would disagree with the conclusions of the theologians at Marty’s conference, but I take it that their feelings are also not the gauge by which we measure whether a burden is substantial. One possibility is to demand some sort of pain threshold, as the Missouri court intimates, going so far as to suggest (in what I believe is a misreading of Wisconsin v. Yoder) that suffering a substantial burden may even require a willingness to suffer criminal prosecution. Putting aside the objection that there is of course a difference between a necessary condition and a sufficient condition, would the argument become a “serious” argument if the owner of the company would prefer to be prosecuted rather than to comply? Or to prefer to pay a fine? Or does the “seriousness” of the argument not depend at all on the degree of suffering that the claimant is willing to endure? Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such "cooperation." That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue of cooperation with evil, thanks. Mark S.: You appear to place a good deal of stress on the fact that contraception is "specifically" mentioned in the health-insurance plans in question, whereas of course it is not "specifically" mentioned in the laws requiring employers to pay taxes and salaries, even though everyone knows that such taxes and salaries will be used in part to pay for contraception. What difference does that specification make from a Catholic moral perspective? To the extent you're suggesting that the inclusion of the words "contraceptive services" in the insurance plan might be understood by some observers to suggest the employer's own endorsement of contraception, I think that is unlikely: After all, who reasonably thinks that any employer approves of all the myriad health-care services included in a health-insurance plan? But in any event, an employer concerned about the prospect of such mistakenly attributed endorsement can tell its employees in no uncertain terms that the inclusion of contraception in the plan is required by law, and that the employer is morally opposed to such services and "specifically" discourages their use. On Sun, Sep 30, 2012 at 11:56 AM, Douglas Laycock <dlayc...@virginia.edu> wrote: Mark references a long tradition of religious thought about cooperation with evil, and how close is too close -- a tradition that is found in both Christian and Jewish teachings (and probably other faiths too, but I know less about those). This tradition was probably not explained to the court. It may or may not have made any difference. Judges have been attracted to no-burden holdings since RFRA was enacted, I think because it seems to make a hard case go away. They don't have to limit the reach of the government's program, they don't announce that some modest government interest is actually compelling, and they don't have to admit that they are letting the government trample on someone's religion. Intense believers in these cases are often represented by intensely believing attorneys, and they too often treat the burden on religion as obvious, and do a lousy job of developing the issue. I don't know if that happened here, but I suspect that it did, and of course I don't know whether it would have mattered. A substantial secular business as plaintiff likely affected the initial judicial reaction to this case. But the reasoning appears to be equally applicable to religious non-profits controlled by bishops or other religious authorities. On Sat, 29 Sep 2012 22:36:44 -0700 "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> wrote: >Of course there is a long history of careful, thoughtful moral analysis that >treats the directness of a person's involvement in an action as a key >indicator of the person's moral responsibility for it. It is not >idiosyncratic at all for the employer to believe that he or she is being >coerced into violating religious conscience by being required specifically to >subsidize an activity that he or she believes is wrong, and, even worse, by >being required to agree specifically to subsidize that activity by entering >into a contract providing for it to be subsidized. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ 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. _______________________________________________ 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. 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