I wonder how far some would be willing to take this proposition, that a parent's financial support for benefits to an adult child can rise to the level of coercion/leverage that if exercised with religious motivations could have constitutional implications.
Let me offer a different scenario, one in which the government's role is diminished but still very significant in the effect it plays on options: higher education choices. Suppose that Sue is graduating from high school at the age of 18. She wants to go to college. To be sure, no law requires a parent to finance an adult child's college education. But federal and state financial aid programs, as well as those of all colleges, will evaluate her need based on her parents' income and assets. If her parents have any substantial income and assets, Sue will be found to have little or no need, thus greatly restricting her ability to obtain grants and even loans on her own. Because she likely will have a low credit score, she will find it difficult to get significant educational loans in the private market, without a parent co-signing the loan. In sum, her choices of where to attend to college are significantly restricted - perhaps even precluded altogether (in the near term at least) - unless her parents are willing to assist (which of course is the assumption underlying federal financial aid programs). Now suppose that Sue has a great high school GPA, great test scores, and great extra-curriculars (and of course writes a very good admissions essay), resulting in her admission to both Princeton and Notre Dame. For various reasons, Sue would like to go to Princeton. But Sue's parents, as committed Catholics, tell her they are willing to help pay for her to go to Notre Dame but will contribute nothing to help her attend Princeton. As a practical matter, then, Princeton is off the table for Sue. She can refuse to attend Notre Dame of course, but then she likely will have to cobble together funds from some source to attend the local public university - and even that lower cost institution may prove difficult or beyond reach for an adult child who, under federal, state, and college financial aid parameters, is regarded as having no need. Remembering that the provision of financial aid by the federal and state governments, with set parameters based on parent financial resources, plays a significant role in creating this dilemma for Sue. Does that mean that her parents' decision somehow transgresses constitutional limitations regarding interaction with religion? And remember as well that Sue's parents could always have chosen not to provide her with aid to any college, Princeton, Notre Dame, or State U (just as a parent has no legal obligation to offer any health insurance benefits for an adult child). Or is this hypothetical wholly lacking in adequate analogies to the health insurance scenario? Greg Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, August 16, 2013 1:40 PM To: Law & Religion issues for Law Academics Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate There's much to what Chip says in general. But, as applied, I wonder. If refusing to support your adult child is an "externality," then nearly everything becomes an externality. (Incidentally, does the ACA even purport to legally require parents to include adult children under their policy? If a parent is legally entitled to just not include an 18-year-old on his insurance, how is it an "externality" on the 18-year-old if the parent seeks a less than full policy?) If we have gotten to the point that adult A's refusal to include adult B under a benefit plan that adult A has earned as part of his job is a "fine imposed" on B, then I wonder how the externality/nonexternality distinction can really be made to work. Incidentally, it seems to me -- despite the Court's disclaimer in Sherbert -- people in Sherbert's shoes do impose an external cost on others, either taxpayers or on their former employers, who have to pay more in unemployment insurance as a result of the claims. That's one reason I think Sherbert was wrong, but, again, that's the law. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Friday, August 16, 2013 11:07 AM To: Law & Religion issues for Law Academics Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate Cutter v. Wilkinson, and other Establishment Clause decisions (e.g., Caldor) teach that statutory accommodations of religion should be construed with an eye toward possible negative externalities of the particular acommodation sought. Would accommodation of this Missouri legislator, and other similar objectors, cause such externalities? Perhaps on employers and insurance companies, who would have to tailor policies to satisfy the (various) religious objections of policy-holders? In this particular case, accommodation seems to impose negative externalities on the 18 and 19 year-old daughters of the legislator. The ACA permits them to remain on their parents' policy until age 26, and a separate policy for each of them may well cost them more (it will cost them something) than some sort of fair share contribution to their father's policy, if he asks for that. And the ACA, as administered, creates an entitlement to pregnancy prevention services (no co-pays, no deductibles) for those women covered by its terms. So accommodating this Missouri legislator looks like a "fine imposed" (cf. Sherbert) on the daughters as a result of their father's religious preferences. That's not a religious burden, but if a lost entitlement can qualify as a religious burden, can't it likewise qualify as a burden on the reproductive freedom of those who must bear the resulting cost of pregnancy prevention services? On Fri, Aug 16, 2013 at 1:17 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I'm still not sure I understand. This is plaintiff's insurance, which he either has to pay for or which is provided as a perk of his job. How is he an "officious intermeddler" under such circumstances? He's not going into court to seek an injunction barring an 18-year-old from getting something using the 18-year-old's own money. He's seeking to control the insurance that comes as a result of his employment. (Whether he's acting rightly or not is an interesting question -- I'm inclined to not be sympathetic to him as an ethical matter -- but I'm speaking here of the legal question.) I agree, by the way, that the RFRA choice of an across-the-board compelling interest test was a mistake, and have said as much in print, http://www.law.ucla.edu/volokh/relfree.htm (Part II). But it's there. Eugene > -----Original Message----- > From: > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> > [mailto:religionlaw-<mailto:religionlaw-> > boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of mallamud > Sent: Friday, August 16, 2013 9:16 AM > To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu> > Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate > > One problem,in my opinion, is that RFRA mandates a compelling interest test > in areas unsuited to it. Regulation of employment and insurance coverage > falls within the province of the legislature, and while I am worried about > limits on freedom when the legislature gets too involved, this is not at issue > in this case. Legally, I agree with the suggestion that the suit should be > dismissed on standing grounds. But from a common sense point of view the > provision of a benefit in circumstances in which you must affirmatively take > additional action to receive the benefit should not be considered to impinge > on the religious views of people who believe they should not have the > benefit. Just do not use it. The policy with contraceptive coverage does not > force the potential beneficiary to do anything and therefore should not be > considered to affect his religious views, nor does it force his daughters to > take advantage of it. > > Freedom of religion should promote harmony. Live and let live. It should not > provide religious people with the ability to interfere with the provision of > benefits to those who do not share the same views. > This is a classic case of an officious intermeddler trying to cause trouble > because of personal sensitivities. Even were he to have a right, I think > this is > a case where it is not right to assert it. Even if he would be satisfied > with a > judicially mandated provision in the policy excluding coverage for anyone > with religious objections to it, it is just wasting money and causing trouble. > Religious people should not interfere with benefits given to people who do > not share their beliefs and if RFRA really gives them the option to do so, > RFRA > is not furthering the harmony religious freedom should promote. > > Jon >
_______________________________________________ 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.
