Steve -- I agree with what you've said. I would point out that you used the term
"burden," not "substantial burden." My point is that I the contraceptive mandate
burden's an employer's free exercise if they are opposed to the mandate for
religious reasons -- but, importantly, they are not substantially burdened in my
view (as I believe Judge Jackson correctly analyzed the burden). The religious
burden is de minimis and remote. And there is no economic burden as the mandated
coverage is, in the aggregate, is a cost saver.
In addition, I believe a fair analogy would be to the Lemon test's excessive
entanglement prong. Mere "entanglement" doesn't constitute an Establishment
Clause violation just as a mere "burden" doesn't establish a Free Exercise
Clause violation here.
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA
703-533-0236
On September 29, 2012 at 11:44 PM Steven Jamar <stevenja...@gmail.com> wrote:
> Of course the law burdens religious exercise -- if you take religious exercise
> to that extreme meaning. If you choose to take it to that extreme, then you
> cannot be in that line of work or you must pay the penalty for engaging in
> that kind of work.
>
> You can't simply ignore civil law because you don't like it. I didn't like my
> taxes going to the war in Iraq (and I can think of lots of other things I
> don't like. And I have moral objections to many things, though fewer things
> than those I don't like. And I think torture is violates just about every
> religion out there.
>
> And yet I must pay for these things I don't believe in.
>
> The social security cases and other cases were properly decided -- following
> the same economic rules as everyone else when you enter the market place is
> not a substantial burden on your exercise. If you can't do it, get out of the
> market and into something where you can follow your religion.
>
> Free exercise is not a free pass.
>
> Steve
>
> On Sep 29, 2012, at 10:52 PM, Walsh, Kevin wrote:
>
> > The court appears to have recharacterized the allegations in the RFRA claim
> > to make it easier to dismiss.
> > ________________________________________
> > From: religionlaw-boun...@lists.ucla.edu
> > [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman
> > [lederman.ma...@gmail.com]
> > Sent: Saturday, September 29, 2012 10:30 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate
> >
> > For what it's worth, here are the allegations in the complaint relevant to
> > establishing the alleged burden on religious exercise:
> >
> >
> > Plaintiff O’Brien believes that he cannot pay for and provide coverage for
> > contraceptives, sterilization, abortion or related education and counseling
> > without violating his religious beliefs.
> >
> > Plaintiffs are . . . confronted with choosing between complying with [the
> > HHS mandate] in violation of their religious beliefs, or paying ruinous
> > fines that would have a crippling impact on their ability to survive
> > economically.
> >
> > * * *
> >
> > The Mandate coerces Plaintiffs into complying with its requirements or
> > abandoning integral components of the Plaintiffs’ religiously inspired
> > mission and values.
> >
> > Plaintiffs’ sincerely held religious beliefs prevent them from providing
> > coverage for “all FDA-approved contraceptive methods, sterilization
> > procedures, and patient education and counseling related to such
> > procedures.”
> >
> > The Mandate/Final Rule, by requiring Plaintiffs to provide said coverage,
> > imposes a substantial burden on Plaintiffs’ free exercise of religion by
> > coercing Plaintiffs to choose between conducting their business in
> > accordance with their religious beliefs or paying substantial penalties to
> > the government.
> >
> >
> > On Sat, Sep 29, 2012 at 9:43 PM, Walsh, Kevin
> > <kwa...@richmond.edu<mailto:kwa...@richmond.edu>> wrote:
> > The court's carelessness with respect to substantial burden prevented it
> > from facing up to the more interesting legal question re: exercise of
> > religion.
> >
> > I say that the court was careless because its analysis depends upon a
> > tendentious characterization of the nature of the religious objection. How
> > does someone run a business with 87 employees if his religion prohibits "an
> > outlay of funds that might eventually be used by a third party in a manner
> > inconsistent with one's values"? That kind of religious belief would make it
> > difficult to gas up a car and head into work, or even just to stay home and
> > surf the internet. Maybe, instead, the objection has something to do with
> > being forced by the government to pay for a particular kind of policy
> > (rather than pay taxes and have the government purchase the policy instead).
> >
> > In the law, there is such a thing as winning too much. I suspect that is the
> > federal government's view of this sloppy decision.
> > ________________________________________
> > From:
> > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> > [religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
> > on behalf of Marty Lederman
> > [lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>]
> > Sent: Saturday, September 29, 2012 8:43 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate
> >
> > Strikingly, the court rejects the RFRA claim on the ground that there is no
> > substantial burden. The key reasoning, some of which might also be relevant
> > to several other sorts of cases (e.g., landlord cases) in which the
> > religious burden theory is that the provision of funds or services
> > "facilitates" the alleged sins of another:
> >
> >
> > RFRA does not protect against the slight burden on religious exercise that
> > arises when one’s money circuitously flows to support the conduct of other
> > free-exercise-wielding individuals who hold religious beliefs that differ
> > from one’s own.
> >
> > Indeed, if the financial support of which plaintiffs complain was in fact
> > substantially burdensome, secular companies owned by individuals objecting
> > on religious grounds to all modern medical care could no longer be required
> > to provide health care to employees. A district court has already rejected a
> > RFRA challenge to the individual mandate of the ACA as applied to plaintiffs
> > whose religion forbids seeking medical care. “[T]he conflict between the
> > [ACA’s] requirements and Plaintiffs’ Christian faith does not rise to the
> > level of a substantial burden... Plaintiffs have failed to allege any facts
> > demonstrating that this conflict is more than a de minimis burden on their
> > Christian faith.... Finally... Plaintiffs routinely contribute to other
> > forms of insurance, such as Medicare, Social Security, and unemployment
> > taxes, which present the same conflict with their belief that God will
> > provide for their medical and financial needs.” Mead v. Holder, 766
> > F.Supp.2d 16, 42 (D.D.C. 2011).
> >
> > Just as in Mead, plaintiffs must contribute to a health care plan which does
> > not align with their religious beliefs. In this case, however, the burden on
> > plaintiffs is even more remote; the health care plan will offend plaintiffs’
> > religious beliefs only if an OIH employee (or covered family member) makes
> > an independent decision to use the plan to cover counseling related to or
> > the purchase of contraceptives. Already, OIH and Frank O’Brien pay salaries
> > to their employees---money the employees may use to purchase contraceptives
> > or to contribute to a religious organization. By comparison, the
> > contribution to a health care plan has no more than a de minimus impact on
> > the plaintiff’s religious beliefs than paying salaries and other benefits to
> > employees.
> >
> > Under plaintiffs’ interpretation of RFRA, a law substantially burdens one’s
> > religion whenever it requires an outlay of funds that might eventually be
> > used by a third party in a manner inconsistent with one’s religious values.
> > This is at most a de minimus burden on religious practice. The challenged
> > regulations are several degrees removed from imposing a substantial burden
> > on OIH, and one further degree removed from imposing a substantial burden on
> > OIH’s owner and manager, Frank O’Brien. Because there is no substantial
> > burden imposed on either plaintiff’s religious exercise, plaintiffs have
> > failed to state a claim under RFRA. Count I of the Amended Complaint will be
> > dismissed.
> >
> >
> > On Sat, Sep 29, 2012 at 8:17 PM, Friedman, Howard M.
> > <howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu><mailto:howard.fried...@utoledo.edu<mailto:howard.fried...@utoledo.edu>>>
> > wrote:
> >
> >
> > In an important and carefully reasoned opinion yesterday, a
> > Republican-appointed federal district judge rejected on the merits a series
> > of RFRA and First Amendment challenges to the contraceptive coverage mandate
> > under the Affordable Care Act. More at Religion Clause
> > http://religionclause.blogspot.com/2012/09/court-rejects-religious-liberty.html
> >
> > ***************************
> > Howard M. Friedman
> > Professor of Law Emeritus
> > University of Toledo
> > ***************************
> >
> > _______________________________________________
> > To post, send message to
> > Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu><mailto:Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>>
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> >
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> > _______________________________________________
> > To post, send message to
> > Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
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> > _______________________________________________
> > To post, send message to Religionlaw@lists.ucla.edu
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>
>
> --
> Prof. Steven D. Jamar vox: 202-806-8017
> Associate Director, Institute for Intellectual Property and Social Justice
> http://iipsj.org
> Howard University School of Law fax: 202-806-8567
> http://iipsj.com/SDJ/
>
> "I do not at all resent criticism, even when, for the sake of emphasis, it for
> a time parts company with reality."
>
> Winston Churchill, speech to the House of Commons, 1941
>
>
>
>
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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>
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