First, let me applaud Marty's memory. I am certain I could not tell you what was discussed on this list in 1999! I'm not sure I was even reading it then.
In any event, this is not the Thomas case. In Thomas, the objection was based on the believer avoiding taking action that he would find in conflict with his faith. He could not, consistent with his faith, participate in the manufacture of materials used in arms. In this case, the alleged violation is in the financial support of a system in which others engage in acts that conflict with his religion. That is a step farther. That is what makes me most uncomfortable about this (along with the fact it singles out women's health). I understand that the argument is that the payment into the fund itself is a burden, but that cannot be a winning argument after Lee, or after Zelman or the 4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses, money is fungible, and the entity/person sending money into a stream no longer has power/say/responsibility for how the money is used by independent actors who pluck it from that stream. So we are back to the question whether there is a free exercise right for a for-profit company to deter employees from engaging in acts that conflict with the employer's religion. 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 -----Original Message----- From: Marty Lederman <lederman.ma...@gmail.com> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Thu, Oct 4, 2012 11:25 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Marci: As this thread has demonstrated, I certainly have concerns about the nature of the "cooperation with evil" theory of substantial burden being asserted here. But the theory is anything but new. It is also not based on the notion that others' use of contraception would violate the employers' religious liberty--indeed, I think most of these employers likely assume that their employees will continue to use contraception regularly in any event, albeit at a greater cost to the employees. The claim here is that the employer's involvement in allegedly facilitating the employees' conduct implicates the employers themselves in wrongdoing. As I've explained, I think this theory raises serious, difficult questions. But it's hardly novel. It was the theory in Thomas (he wasn't the one using the tanks to shot enemy soldiers). It's the theory we discussed on this list back in 1999-2000, when confronted by cases of landlords who didn't want to rent to unmarrieds. It's the theory raised in the Posner and related cases about police protection of abortion facilities. And it's the theory underlying the current disputes about proprietors -- B&Bs, florists, photographers, caterers, etc. -- who wish to discriminate against gay couples. Indeed, what makes it interesting and important is precisely that, post-Thomas, so many different religious liberty claims take this form. On Thu, Oct 4, 2012 at 11:08 AM, <hamilto...@aol.com> wrote: Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing personal religious requirements on others. It is a weaker claim than any yet brought against government regulations on free exercise grounds. 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 -----Original Message----- From: Gaubatz, Derek <dgaub...@imb.org> To: religionlaw <religionlaw@lists.ucla.edu> Sent: Wed, Oct 3, 2012 2:47 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden. As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs). Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting "substantial burden" The "burden" in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. >From a philosophical perspective, it is the classic Nietzschean will to power. > That doesn't mean the belief is not sincere, but rather that the asserted >beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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 -----Original Message----- From: Marty Lederman < > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Sent: Wed, Oct 3, 2012 10:04 am 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 < > 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 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] 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 _______________________________________________ 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.
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