The burden on religion in these cases is not the amount of money. It is
arranging for, contracting for, and paying for services the employer believes
to be deeply immoral. From the believer’s perspective, it doesn’t matter
whether it costs money or saves money.
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] On Behalf Of b...@jmcenter.org
Sent: Tuesday, October 02, 2012 11:36 PM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Doug,
Would your view -- expressed in the third paragraph of your post -- be
different if the HHS mandated contraceptive coverage, preventive care, etc.
actually saved the employer money rather than cost the employer money? Would
saving money (i.e., reduced insurance premium) be a substantial burden even if
the saving resulted a government mandate to provide health care that the
employer found religiously objectionable?
Bob Ritter
Jefferson Madison Center for Religious Liberty
A Project of the Law Office of Robert V. Ritter
Falls Church, VA 22042
703-533-0236
On October 1, 2012 at 8:01 PM Douglas Laycock <dlayc...@virginia.edu> wrote:
> My post on the analogy between exemption from military service and exemption
> from abortion was addressed to Marci's claim that there should be nothing
> special about objection to abortion. That is a much broader claim than just
> the ACA issue. And there are people in the pro-choice movement pushing
> against conscience protections for medical providers.
>
> As to ACA, I do not think there is a burden when an employer pays salary, and
> the employee then uses the money for purposes the employer considers immoral.
> The salary payments could have been used for anything.
>
> I think the burden on the taxpayer who pays taxes, knowing that the
> government will use the money for purposes the taxpayer considers immoral, is
> highly attenuated, and uniformly outweighed by the government's compelling
> interest in paying taxes.
>
> The ACA looks different to those objecting, and plausibly so, because the
> money is not paid to the employees or to the government. The employer buys a
> package of services that includes the services the employer believes to be
> immoral, including the morning-after and week-after pills that the employer
> believes sometimes kill human beings. The employer contracts for those
> services and pays for those services, and these employers say they cannot in
> conscience do those things.
>
> On Mon, 1 Oct 2012 19:46:50 -0400
> Marty Lederman <lederman.ma...@gmail.com> wrote:
> >Fortunately, the question here is far, far removed from whether the state
> >can or should require anyone to perform an abortion, or to kill in battle.
> >It is, instead, whether the state can require employers to take some of the
> >money they would have used to pay employee salaries, or taxes -- some of
> >which would foreseeably have been used to pay for contraception (or even
> >abortions, in the case of salaries), anyway -- and instead use it to
> >partially subsidize an insurance plan that, like salaries and taxes, is
> >used to pay for countless goods and services, some of which involve
> >contraception, but only when someone else (the employee) chooses to use it
> >for that purpose. (FWIW, I believe the law does not allow HHS to require
> >plans to cover abortions, and the Rule therefore does not do so.)
> >
> >Doug, a couple of your posts here have suggested that even in the cases of
> >salaries and taxes being used for contraception, there is a substantial
> >burden on the religious exercise of objectors, but one that might be
> >overcome by a compelling government interest. For anyone who starts from
> >that view, the HHS would certainly raise a harder question. But I am not
> >aware of any employer, or Catholic theologian, who takes the view that the
> >payment of taxes or salaries is wrongful just because the employer knows
> >that they will be put to use for contraception and (in the case of
> >salaries) abortions . . . and many other things, besides, that are wrongful
> >in the eyes of the employer.
> >
> >Thus the question here is whether the state ought to take at face value the
> >assertions of some employers that the moral obligation changes dramatically
> >when the money is used for partial subsidization of an insurance plan,
> >rather than for taxes or salaries. I actually think this is a complex
> >question, as to which I deeply appreciate the many thoughtful views others
> >have contributed to this thread. But whatever the merits of that
> >distinction, the case is a far cry from compelling the employer "to kill
> >another human being."
> >
> >On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock
> ><dlayc...@virginia.edu>wrote:
> >
> >> We have a long political tradition of treating objections to killing as a
> >> special claim, deserving special protection. We have exempted
> >> conscientious
> >> objectors in all our wars, even when national existence was on the line,
> >> and notwithstanding powerful incentives to dubious conversions or false
> >> claims.
> >>
> >> In the abortion case, the majority believes it is not a killing of a human
> >> being; the conscientious objector believes it is. The disagreement over
> >> the
> >> nature of the killing comes at a slightly different point; I do not claim
> >> that the cases are identical.
> >>
> >> I do believe that there are sound reasons, reflected in our legal and
> >> political tradition, to give special deference to what the conscientious
> >> objector believes is a refusal to kill another human being.
> >>
> >> The cases also differ in the weight of the government's interest; it is
> >> almost never essential that an abortion be performed or assisted by a
> >> particular medical provider.
> >>
> >> On Mon, 1 Oct 2012 17:16:55 -0400 (EDT)
> >> hamilto...@aol.com wrote:
> >> >
> >> >
> >> >I'm glad you asked this question, because it seems to indicate that the
> >> argument against the ACA at base appears to be that the belief against
> >> abortion is somehow more important than other beliefs. I don't see how the
> >> Establishment Clause permits that kind of religious belief prioritizing,
> >> or
> >> any of the free exercise cases either.
> >> >
> >> >
> >> >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
> >> >
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