The difference between the college scenario that Greg raises and the health insurance scenario may be the universal entitlement to the latter that the ACA creates. As others have said, the Missouri plaintiff is not obligated to have a family health insurance policy, nor is he obligated to include his children on his policy. But if he left them off his policy entirely, they would have to buy health insurance on their own.
But this plaintiff wants it both ways. He wants the benefits (lower premiums, information) of the family policy for his non-minor daughters, but he wants to exclude them from coverage of pregnancy prevention services. It is that move -- keep the family policy benefits for himself, while imposing on his daughters the separate costs of pregnancy prevention services to which the daughters are otherwise legally entitled -- that is the externality imposing event. Cutter does not say all externalities are fatal -- it just says that RLUIPA (and by implication, all RFRA's) should be construed with third party costs in mind. In the Missouri case, the third party costs might be sufficient to force a construction that denies the exemption. Indeed, if courts are disabled from measuring the substantiality of the burden, as many plaintiffs argue in these ACA cases, there is all the more reason to let third party costs operate as a significant check on exemption claims. On Fri, Aug 16, 2013 at 4:08 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > This scenario is occasionally litigated, without the religious twist, in > bitter divorces. Dad refuses to help pay for college, or refuses even to > fill out the financial aid forms, and the courts say he doesn’t have to. > The support obligation ends at 18.**** > > ** ** > > That obviously doesn’t fit with the realities or expectations of middle > class life, and I think a few states have changed it by statute. But that’s > the background law that underlies this discussion.**** > > ** ** > > 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 *Sisk, Gregory C. > *Sent:* Friday, August 16, 2013 3:55 PM > > *To:* 'Law & Religion issues for Law Academics' > *Subject:* RE: New Twist On Challenge to ACA Contraceptive Mandate**** > > ** ** > > 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**** > > ** ** > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
