Dear colleagues, Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the decision’s many flaws -- to the decision we’re discussing, at the “Mirror of Justice” blog: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html
As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an exemption-less requirement that the diocese provide insurance coverage for elective abortions. Do those who have been welcoming this decision agree that RFRA would not / should not protect the diocese in such a case? Best, R Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law & Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com> Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Religious groups and their supporters have been trying to water down "substantial" for years. The Alabama rfra doesn't include "substantial" and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of "substantial." Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate "substantial burden" was to be interpreted according to existing precedents (as of 1993 and 2000)..... In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. 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<mailto:hamilto...@aol.com>
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