Isn't that like saying, "if it's OK for you to 'produc[e] the
raw product necessary for the production of any kind of tank,' why is working
on tank turrets any different?"? Why isn't the answer much like that given in
Thomas: "But Thomas' statements reveal no more than that he found work in the
roll foundry sufficiently insulated from producing weapons of war. We see,
therefore, that Thomas drew a line, and it is not for us to say that the line
he drew was an unreasonable one."?
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Wednesday, October 03, 2012 7:49 AM
To: Law & Religion issues for Law Academics
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
That's the point, Mark. The employer freely, and without objection, enters
into an employment contract with the employee to pay wages in exchange for
labor, knowing full well that some % of the wages will be used for
contraception, abortion, and probably a bunch of other things the employer
considers sinful. Now, the state requires that the contract be changed
slightly, so that in exchange for labor, the employee gets not only wages (in
effect diminished because of the cost of the health insurance), but also access
to a health insurance plan. What I think the judge was getting at here was:
If the first contract is morally unobjectionable, why is the second any
different?
On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark
<mark.scarbe...@pepperdine.edu<mailto:mark.scarbe...@pepperdine.edu>> wrote:
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>
[mailto: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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