Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is *not*responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.?
If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the "conscience" rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a "substantial" burden on the employer's obligations of conscience in this case? On Mon, Oct 1, 2012 at 2:11 PM, Rick Garnett <rgarn...@nd.edu> wrote: > Dear Marty,**** > > ** ** > > I agree with you that a religious institution (which, I think, should > include most of the institution-plaintiffs challenging the > preventive-services mandate -- Catholic Charities, EWTN, the University of > Notre Dame, etc.) is better positioned to frame the “substantial burden” in > terms of its institutional “mission”, though I also think that the better > way to handle the objection of, say, the owner of a commercial business is > by asking about feasibility (tailoring, alternatives, etc.) and not by > asserting (as the court here did) that there is no burden because employees > often do things with their salaries to which employers object on moral > grounds, etc. (I do agree that, generally speaking, there isn’t a strong > “substantial burden on conscience” objection to expenditures by the > government from funds raised through taxes, but also think that the problem > presented by the mandate, even for commercial employers, is different.)*** > * > > ** ** > > Also, I’d like to hear more from those who support the court’s reasoning > in response to Alan Brownstein’s as-per-usual thoughtful e-mail, in which > he expressed concerns about the “no burden here” assertion, given what > would seem to be the tension between that assertion and claims that, say, > allowing school-voucher recipients to send their kids to Catholic schools > burdens the conscience of one who objects to such funding. If this > decision were right, then wouldn’t we have a(nother) reason to overrule > Flast?**** > > ** ** > > Best,**** > > ** ** > > Rick**** > > ** ** > > 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 *Marty Lederman > *Sent:* Monday, October 01, 2012 1:48 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > Rob's thoughts are well worth reading -- he puts his finger on a bunch of > questions that are sure to be central to these cases going forward. > > One caveat on the "equivalence" point raised by Rob and Rick: > > To the extent the court is rejecting a "proximate cooperation with evil" > theory of substantial burden here, then yes, that same theory would > presumably be subject to the same objections if the case involved a diocese > and elective abortion coverage. But the diocese would have a much stronger > substantial burden argument on a different theory -- one of the > "institutional autonomy" theories that Rick referred to earlier. In > particular, assuming the diocese exercises its title VII exemption, and > prefers coreligionists in employment, then I'd assume one of its principal > functions -- unlike that of the ceramics-processing O'Brien Industrial > Company -- is to create and nurture a particular kind of religious > community, one in which its employees are expected to advance its Catholic > mission, and to adhere to Catholic tenets in their own conduct. The HHS > rule would arguably have a significant impact on the ability of the diocese > to so shape its community and to ensure that its employees act in > accordance with Catholic precepts. In that respect, the diocese is very > differently situated for RFRA purposes from the O'Brien Industrial Company, > which hires many non-Catholics and that does not endeavor to require its > employees to conform their conduct to Catholic precepts.**** > > On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett <rgarn...@nd.edu> wrote:**** > > 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<religionlaw-boun...@lists.ucla.edu>] > *On Behalf Of *hamilto...@aol.com > *Sent:* Monday, October 01, 2012 8:34 AM > *To:* 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**** > > **** > > > _______________________________________________ > 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. >
_______________________________________________ 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.
