Doug: Is it actually the case that "the bishops say these rules are too important to them for a following orders defense to provide moral justification"? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical "common carrier" taxi driver who takes a woman to a clinic for an abortion?
I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > Well, Marty’s response at least seems to agree that saving money doesn’t > take away the claim.**** > > ** ** > > Does following government orders take away the claim? If it did, as Marty > notes, there could never be a RFRA claim. If the government funded the > orphanage, and ordered the church to take the cheaper food contract, it > would take away the church’s choice – but the church would not feel at all > exonerated.**** > > ** ** > > Some people feel exonerated by a following orders defense, and some do > not. And I suspect many people feel that following orders can justify > violations of minor rules, but cannot justify serious wrongdoing. Lots of > RFRA claims are never filed because people with religious objections go > along when their objections are not strong enough to motivate a difficult > fight with the government.**** > > ** ** > > The bishops say these rules are too important to them for a following > orders defense to provide moral justification. And I find nothing > implausible in that claim. With respect to the drugs that they believe > sometimes cause abortions, I would be astonished if they took any other > position. With respect to ordinary contraception, I think many of us are > finding it hard to believe they take the rule so seriously, because we > think the rule is so stupid. But it is very important to the bishops, and > to some conservative Catholics, and they are saying that following orders > cannot justify them in paying for a policy that will provide these drugs. > **** > > ** ** > > 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 *Marty Lederman > *Sent:* Wednesday, October 03, 2012 3:26 PM > > *To:* Law & Religion issues for Law Academics > *Cc:* M Cathleen Kaveny > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > If I understand the Catholic doctrine, Doug, in your hypothetical the > church will have *chosen* to save the $200,000 by having the kids > dumped. That would be a form of (presumptively prohibited) formal > cooperation with evil. > > But here, the state has eliminated the choice. (Well, not quite -- > because the employer can still make the payment to the government instead > of offering the insurance plan. But let's assume for sake of argument that > it's a flat requirement, or that the level of payment make noncompliance > unrealistic.) And that makes a huge difference for purposes of Catholic > (and most other) moral reasoning, because now we're asking the question * > not* of whether your *volitional choice* was impermissible (as in your > hypo), but instead whether your proximity to the evil, in and of itself, is > so great that your cooperation is immoral *even though you were > well-intentioned*. > > You're right, of course, that the fact that coverage is legally mandated > can't categorically eliminate the prospect of a substantial burden, because > in that case there'd never be a valid RFRA claim. So, for example, a > religion might teach that *certain *action is immoral, even if done under > duress -- indeed, even if done under threat of criminal sanction. In such > a case, a state law requiring the conduct surely imposes a substantial > burden on religious exercise, at least if the person in question otherwise > is committed to abiding by that norm. > > But in most cases, including this one, the fact of legal compulsion does > radically alter the moral calculus, because it eliminates the principal > thing that made the conduct in your hypo wrongful, namely, the *choice*to > sacrifice the kids for $200,000 savings. > > Suppose, for example, that in City A, taxi drivers have complete > discretion which fares to accept, and a taxi driver who believes that > prostitution is immoral chooses to prefer fares going to so-called houses > of ill-repute, because they much more remunerative (because of distance, > clientele, whatever). That choice would be a violation of the norm against > formal cooperation with evil. > > City B, however, has decided to treat cab drivers as common carriers -- > they must accept all fares, no matter the destination. Our same cab > driver, thinking that prostitution is unlawful, but now working in City B, > abides by the law, picks up all fares without discrimination . . . and > occasionally finds himself being asked to drop the passenger at a so-called > house of ill-repute, a request that (like all others) he honors. In this > case, he has performed exactly the same act as he did in City A, but this > time, he has not violated religious tenets. > > Seems to be that in most material respects, the HHS Rule is more like my > taxi driver in City B -- or the taxpayer in any jurisdiction -- than like > your hypo of a Church that would gladly leave kids on the street in order > to save a few bucks. > > > **** > > On Wed, Oct 3, 2012 at 3:04 PM, Douglas Laycock <dlayc...@virginia.edu> > wrote:**** > > It cannot be the answer that the coverage is mandated. Whether the > coverage can be mandated is the question. The employer signs a contract, > and pays for a contract, that covers these services. But for the > regulation, he could sign and pay for a very similar contract that does not > cover these services. **** > > **** > > Re saving money: I’m going to tweak the facts to isolate the issue of cost > saving. I’m going to make the religious objection one that everyone would > share. I understand that these hypothetical facts are extreme. The point > is only to separate the issue of saving money from all the other issues.** > ** > > **** > > Suppose the church runs an orphanage with 1000 children. It invites bids > on a contract to feed the children for a year. It specifies the quantity > and quality of food. It gets two bids. **** > > **** > > The first bid is $1.5 million. The second bid is $1.3 million. The second > bidder specifies that after the contract is awarded, it will take the 100 > oldest children, drive them to the nearest big city, and dump them on the > street. There will be no need to feed them anymore. The church should not > worry that it is paying for this immoral act, because it isn’t paying – it > is actually paying less instead of more. But of course the church would > think itself morally responsible if it signed that contract.**** > > **** > > From the church’s perspective, if contraception saves money, it will do so > by preventing children from being born. Most of us think that contraception > is good thing. But if you think it an evil thing, the fact that it saves > money does not make it morally acceptable to contract for it, or to pay for > a package that includes it.**** > > **** > > **** > > **** > > **** > > Douglas Laycock**** > > Robert E. Scott Distinguished Professor of Law**** > > University of Virginia Law School**** > > 580 Massie Road**** > > Charlottesville, VA 22903**** > > 434-243-8546**** > > **** > > *From:* b...@jmcenter.org [mailto:b...@jmcenter.org] > *Sent:* Wednesday, October 03, 2012 1:23 PM > *To:* Douglas Laycock > *Subject:* RE: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > **** > > Doug, thank you for responding but I still don't comprehend your point. > (By the way, you slipped the money back into the argument.) **** > > **** > > Since the coverage is mandated and operative clauses are likely > boilerplate (thus no or virtually no "arranging" and "contracting: for the > contraceptive, etc. coverage) and under the scenario I presented that the > employer is charged nothing additional, I suspect that what is left is > merely that an employer maybe upset that his or her employees have an > opportunity to participated in the mandated services. Much to attenuated > for me to call the mandate a substantial burden on the employer's free > exercise of religion. **** > > **** > > 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 **** > > **** > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others.**** > > ** ** > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
