With genuine respect to Tom, I don't think that one can really generalize from Thomas. Burger did say what Tom says he said, but it simply can't be the case that the First Amendment allows highly idiosycratic religious believers effectively to torpedo important programs, especially when there is so much incentive to engage in strategic misrepresentation and where, unlike the CO cases, the dissidents apparently need do little or nothing more than assert their belief.
And, I confess, I'm just not impressed by the phenomenological differences with the pacifist taxpayer, though as a lawyer I know how to construct the formal distinction. Sandy ----- Original Message ----- From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Sun Sep 30 13:30:07 2012 Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate Marty, The fact that services must be covered in the plan by "virtue of legal mandate" (are "required by law") can't be enough to counter the asserion of a burden, can it--or even be a significant factor in countering it? That would do away with virtually every free exercise claim (I'm only providing facilities for an abortion, or I'm only receiving a blood transfusion, under legal compulsion). You place a lot of weight on the claim that most Catholic theologians say this isn't cooperation with evil, and that no one has articulated a "serious argument" that distinguishes this and paying salaries or taxes. I don't think those things are true (can one conference show it?): consider, for example, Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's argument here about inclusion of the services in the plan language. You and others may not find those arguments convincing. But rejecting the burden claim based on finding the distinction unconvincing, or on the existence of "a great deal of skepticism among [Catholic] theologians," can't be squared--can it?--with Thomas v. Review Board, where the Court said that Thomas's judgment on what work would cooperate with the evil of arms production should be deferred to even though other Jehovah's Witnesses disagreed. "Courts are not arbiters of scriptural interpretation"; the court can't dismiss the! claim at the threshold because it concludes the asserted belief is not "logical," not "consistent," etc. Occasionally you seem to be treating this as a question of remoteness of facilitation for "burden" purposes independent of Catholic moral thought; but more often you return (as I think one must in assessing burden) to asking why claimants believe this is "material cooperation with evil," "from a Catholic moral perspective." That latter question, it seems to me, falls squarely within the restrictions of Thomas v. Review Board not to second-guess the claimant's understanding of its obligations. Tom ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/> ---------------------------------------------------------------------------- ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 11:56 AM 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<mailto: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<mailto: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<mailto: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<tel:434-243-8546> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. 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. 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.
