And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular:
http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only "practicing" Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett <rgarn...@nd.edu> wrote: > Dear colleagues, > > > > I would recommend Prof. Kevin Walsh’s post (here: > http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) > on the issue with which Marty kicked off this thread a few days ago. > Kevin’s post is called “What does the form that the government insists the > Little Sisters of the Poor must sign actually do?” > > > > Of course, others have moved from the specific issues that Marty raised to > more general (and always important) conversations about RFRA’s > constitutionality and the moral desirability of Yoder, but I wanted to ask > just a few things with respect to Greg Lipper’s report that Americans > United for Separation of Church & State has filed a motion seeking to > intervene in the University of Notre Dame’s lawsuit challenging the > mandate. (Although I am blessed to teach at Notre Dame, I have no role in > the University’s lawsuit.) > https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens > > > > I understand (though I do not agree with) the claim that, because Notre > Dame is a large employer in the area, its right to refuse to provide > coverage for contraceptives (in cases where a physician has not indicated > that the contraceptives are medically indicated) to employees who do not > embrace the Catholic Church’s teachings on sexual morality and abortion is > limited. That is, Notre Dame’s role and place in the market limits its > right to say to employees “this is who we are, and if you want to work for > us, you should expect that who we are will be relevant to the terms of our > arrangement with you.” > > > > With respect to students, though, it is harder for me to see why Notre > Dame should not be able to say to prospective students (as Notre Dame > does), “This is who we are. If you come here – and you are welcome to, but > you don’t have to – you should know that our character, mission, > aspirations, and values will shape the terms of our arrangement with you.” > Is it the view of AU, or of others, that the Establishment Clause (or > anything else) prevents the government from exempting a Catholic (or other > mission-oriented) educational institution from an otherwise general rule in > order to allow the institution to say (something like) this to students and > the broader world – again, assuming that students who get into Notre Dame > (a) have plenty of options and (b) know full well that Notre Dame aspires > to a meaningfully Catholic character? > > > > Best, > > > > Rick > > > > Richard W. Garnett > > Professor of Law and Concurrent Professor of Political Science > > Director, Program on Church, State & Society > > Notre Dame Law School > > P.O. Box 780 > > Notre Dame, Indiana 46556-0780 > > 574-631-6981 (w) > > 574-276-2252 (cell) > > rgarn...@nd.edu > > > > To download my scholarly papers, please visit my SSRN > page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> > > > > Blogs: > > > > Prawfsblawg <http://prawfsblawg.blogs.com/> > > Mirror of Justice <http://mirrorofjustice.blogs.com/> > > > > Twitter: @RickGarnett <https://twitter.com/RickGarnett> > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton > *Sent:* Friday, January 03, 2014 1:42 PM > > *To:* Law & Religion issues for Law Academics > *Cc:* Law & Religion issues for Law Academics > *Subject:* Re: The nonprofit contraception services cases > > > > Marty-- could you please elaborate on your response? I am not following > this exchange > > > > Thanks-- > > Marci > > Marci A. Hamilton > > Verkuil Chair in Public Law > > Benjamin N. Cardozo Law School > > Yeshiva University > > @Marci_Hamilton > > > > > > > On Jan 3, 2014, at 12:43 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > They will -- the government realizes that its plan is undermined and is > reassessing > > Sent from my iPhone > > > On Jan 3, 2014, at 12:08 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > > Why don't all these religious nonprofits choose Christian Brothers > Services as their health insurer? That way, certification or not, the > employees will not receive the services to which the employer objects? > Something is missing from this narrative. > > > > Sent from my iPhone > > > On Jan 3, 2014, at 10:56 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > The government's brief in *Little Sisters*: > > http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html > > > > On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > Another post, this one about the nonprofit cases that have now wound their > way to the Court . . . > > > http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html > > > > On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > Since no one else has mentioned it, I will: > > Eugene recently published a remarkable series of posts on the case -- so > much there that virtually everyone on this listserv is sure to agree with > some arguments and disagree with others. It's an amazing public service, > whatever one thinks of the merits. He and I turned the posts into a > single, 53-page (single-spaced!) Word document for your convenience: > > www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx > > I've just started my own series of posts on the case on Balkinization -- > links to the first three below. The second is about the thorny > contraception/"abortifacient" issue (nominally) in play in the two cases > the Court granted. In the third post, I endeavor to explain that the case > is fundamentally different from what all the courts and plaintiffs (and > press) have assumed, because there is in fact no "employer mandate" to > provide contraception coverage. > > > http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html > > > http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html > > > http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html > > Thanks to those of you who have already offered very useful provocations > and arguments on-list; I'd welcome further reactions, of course. > > > > > > _______________________________________________ > 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. > > _______________________________________________ > 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. >
_______________________________________________ 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.
