Eugene and I agree that this legislator is not substantially burdened in his religious freedom, because he is under no duty to buy a family policy. He can avoid the burden without the government penalizing him. So he is in a different position than employers, like Hobby Lobby, who will have to pay a penalty if they drop their health coverage of employees.
But the question of "imposing costs" on his daughters is not as simple as Eugene and others seem to want to make it. This is a classic baseline problem. If the baseline for the daughters is no insurance coverage, then their father seems to want to make them better off (just not as well off as he might). But if the baseline is the full bundle of health services that the United States has asserted should be guaranteed to women covered by a policy that satisfies ACA, then the daughters are worse off, because their father has asserted his religious freedom as a justification for talking one essential (according to the government) item out of their bundle. (Sometimes I think that what people see in these ACA cases is what they want to see, but I suppose I am no more capable of escaping that tendency than anyone else.) On Fri, Aug 16, 2013 at 8:49 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I agree; as I wrote near the start of the thread, "I'm not > sympathetic to the legislator's claim, and I'm not sure that the provision > of only a general insurance policy and not the one with the exceptions > substantially burdens the legislator's belief. Indeed, the legislator's > ability to send a disclaimer to the insurance carrier promising not to use > certain services would, I think, suffice to eliminate any burden he might > feel from having the policy. Cf. Tony & Susan Alamo Foundation v. > Secretary of Labor, > http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged > burden imposed by minimum wage law on employees who felt a religious duty > to volunteer was eliminated by the possibility of just giving the money > back)." > > But that's a very different argument from the argument that the > legislator's seeking a narrower insurance policy is "imposing on his > daughters." The problem with his claim isn't that he's somehow denying his > daughters something to which they're entitled, or that his conduct creates > an externality. > > Eugene > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of mallamud > > Sent: Friday, August 16, 2013 4:49 PM > > To: religionlaw@lists.ucla.edu > > Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate > > > > Take the hypothetical of food stamps that cover the purchase of meat, > > including pork. Could a kosher person or a Muslim who believes his > religion > > does not permit eating pork sue successfully to compel the government to > > issue food stamps that do not permit their use to buy pork? Wouldn't the > > answer be that the decision to buy pork is retained by the individual > just as > > the insurance policy does not require anyone to obtain contraceptives, > let > > alone use them. > > Jon > > > > On 2013-08-16 17:38, Volokh, Eugene wrote: > > > 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] > > > > > > _______________________________________________ > > > To post, send message to Religionlaw@lists.ucla.edu [9] To subscribe, > > > unsubscribe, change options, or get password, see > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [10] > > > > > > 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 > > > [11] > > > > > > Links: > > > ------ > > > [1] mailto:dlayc...@virginia.edu > > > [2] http://crab.rutgers.edu/tel:434-243-8546 > > > [3] mailto:religionlaw-boun...@lists.ucla.edu > > > [4] mailto:religionlaw-boun...@lists.ucla.edu > > > [5] http://crab.rutgers.edu/tel:651-962-4923 > > > [6] mailto:gcs...@stthomas.edu > > > [7] http://personal2.stthomas.edu/GCSISK/sisk.html > > > [8] http://ssrn.com/author=44545 > > > [9] mailto:Religionlaw@lists.ucla.edu > > > [10] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > [11] > > > 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. > > > > _______________________________________________ > 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.
