Of course, as Doug pointed out, here it is precisely what the govt is doing to the religious employer that is at issue.
In terms of the intervening actor theory: We can accept that different people have different views of moral complicity – and respect those views in determining whether the law is requiring a person to violate his or her own religious conscience. For Establishment Clause purposes we can’t have multiple views of whether the government is illicitly aiding or inhibiting religion. For better or for worse, we either need a judicially constructed theory, or at least a judicially constructed theory of what the permitted range of approaches may be that a legislature may adopt. I don’t think there is an inconsistency in the arguments (1) that a requirement to enter into an insurance contract providing for payment for abortions makes the employer complicit, and the (2) that providing funds to parents for them to use for whatever kind of education for their children that they choose does not make the state “complicit” in the relevant Establishment Clause sense. More later if I have the time to amplify this thought. (Is that a promise or a threat?) Even if there is an inconsistency, the courts do not necessarily have to adopt the same view for point (2) that we allow people to hold on point (1). Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com> Sent: Tuesday, October 02, 2012 6:44 AM To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) [snip] This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, 476 U.S. 693<http://www.law.cornell.edu/supct-cgi/get-us-cite/476/693> -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. 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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