I still don't understand the rhetoric of "imposing on his daughters"
here. Plaintiff is entitled, as a benefit for himself because of his
employment, to coverage for his 18-year-old daughters as well as for
himself. But it's his choice; he is entirely free to say "Sorry,
gals,
you're on your own now." Maybe that's unkind towards to his children,
but it's not something that the law views as "imposing on his
daughters the cost of medical insurance." Rather, it's "declining to
give the daughters a gift [albeit a subsidized one] of medical
insurance." (Incidentally, wouldn't he still have to pay for his
daughters under many employer plans, which reasonably charge extra
for
extra insureds?) In this respect, it's very much like a parent's
declining to pay for his adult children's college.
Now it's true that the plaintiff "wants it both ways," and maybe his
employer shouldn't give him that option. But what I don't see is how
his wanting it both ways is "imposing on his daughters" (at least
assuming I'm right that leaving off the daughters entirely isn't
"imposing" on them). It's just giving them a gift that is somewhat
less valuable than what they might want, and that what he might
easily
give them (again, like paying for their Notre Dame education and not
their Princeton education). How is one adult's choice to give another
adult a slightly less valuable gift than he could have otherwise
given
an "externality imposing event," at least if "externality imposing
event" is to have any meaning?
Eugene
FROM: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Ira Lupu
SENT: Friday, August 16, 2013 2:18 PM
TO: Law & Religion issues for Law Academics
SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate
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 [1]> 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 [2]
FROM: religionlaw-boun...@lists.ucla.edu [3]
[mailto:religionlaw-boun...@lists.ucla.edu [4]] 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 [5]
gcs...@stthomas.edu [6]
http://personal.stthomas.edu/GCSISK/sisk.html [7]
Publications: http://ssrn.com/author=44545 [8]
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--
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
[11]
Links:
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