But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services.
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock <dlayc...@virginia.edu<mailto:dlayc...@virginia.edu>> wrote: 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<tel:434-243-8546>
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