Eugene's analogies in the insurance context are hypothetical. Similar analogies
in the landlord-tenant context are very real.
If a tenant uses leased premises for prostitution, the landlord is responsible.
There are California cases on this, and I don't think they are in any way
unusual. But when landlords felt responsible for other kinds of sexual conduct
on their leased premises, their sense of responsibility was dismissed as
unreasonable, in discussions much like the one we have been having, and
California said that requiring landlords to rent to unmarried couples did not
burden their religious exercise.
On Thu, 4 Oct 2012 08:49:53 -0700
"Volokh, Eugene" <vol...@law.ucla.edu> wrote:
> I continue to think that, when someone claims that a law
> substantially burdens their religious beliefs by requiring them to do
> something that they view as religiously wrong because it is complicit with
> evil, the question should be whether the claimant sincerely believes that
> theory of complicity, not whether secular judges view that theory of
> complicity as sensible.
>
> But let's assume for a moment that consistency with secular
> views of complicity is indeed relevant, and let me raise the following
> hypothetical: Say that an employer buys a health insurance policy for his
> employees under which the insurer undertakes to pay for behavior that is
> viewed as felonious by the secular legal system itself. (An odd hypo, I
> realize, because insurers wouldn't do that, but bear with me for a moment.)
>
>Say the insurer, for instance, offers to pay for medical marijuana, which
>remains illegal under federal law (assume possession is made a felony), or to
>pay for "conversion therapy" for gay and lesbian minors (something that is
>forbidden under a new California statute, and let's assume that it becomes a
>felony as well). And say the insurer knows, when he buys the policy, that
>some of his employees - maybe he even knows which ones - are planning to use
>the insurance to feloniously buy the forbidden good or service.
>
> Wouldn't that be potentially considered criminal aiding and
> abetting or criminal facilitation, in those states that set a mens rea of
> knowledge (or even gross recklessness) for criminality? See, e.g., N.Y.
> PENAL LAW § 115.00 (McKinney 2004) ("A person is guilty of criminal
> facilitation in the fourth degree when, believing it probable that he is
> rendering aid ... to a person who intends to commit a crime, he engages in
> conduct which provides such person with means or opportunity for the
> commission thereof and which in fact aids such person to commit a felony.");
> TENN. CODE ANN. § 39-11-403 (2004) ("A person is criminally responsible for
> the facilitation of a felony, if, knowing that another intends to commit a
> specific felony, but without the intent required for criminal responsibility
> under [general aiding and abetting law], the person knowingly furnishes
> substantial assistance in the commission of the felony."). To be sure, the
> employees could well have bo
ught the
>marijuana or the conversion therapy with their own salary; but it seems to me
>likely - at least not implausible - that the law would draw a distinction
>between an employer's knowledge that employees are using their salary to buy
>marijuana, and an employer's knowledge that employees are so using a health
>insurance policy bought by the employer that expressly covers medical
>marijuana purchases.
>
> Likewise, say that an employer provides employees with the
> option of making charitable donations through their payroll system, and
> includes on the list of eligible charities an organization that it knows has
> been designated as a foreign terrorist organization. I would think the
> employer could quite plausibly be prosecuted under the federal law banning
> material support to foreign terrorist organizations, even though the employer
> would likely not be liable if it simply knew that employees were donating
> some of their general salaries to the FTO.
>
> If I'm right about this, then why isn't an employer's similar
> claim of complicity - albeit complicity under its religious obligations,
> rather than under secular law - at least plausible? An employer thinks use
> of contraceptives is sinful, just as the secular law (at least secular law
> that requires a mental state of knowledge or gross recklessness) thinks use
> of marijuana or contribution to foreign terrorist organizations should be
> illegal. The employer thinks that it would be complicit in such use if it
> pays for a policy that expressly covers contraceptives, but not if it just
> pays a general salary that employees are free to use for contraceptives. The
> secular law, I take it, would draw much the same line (at least in some
> jurisdictions). Why should we balk at the line the employer drew, assuming
> it's sincere, even if we think that secular jobs should judge the
> reasonableness of such line-drawing when it comes to religious claims based
> on theories of comp
licity in
>the action of others?
>
> Eugene
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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