Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law.
On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman <lederman.ma...@gmail.com>wrote: > 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.
