Thanks, Rick -- For me, the problem with the ND claim is precisely the opposite. If the beliefs of the group were more unfamiliar, I'd be less puzzled and more likely to defer to the group's own description of the burden. As a Catholic, I feel more entitled to probe, and as a consequence I have really struggled to reconcile the ND litigation position with what I understand Catholic teaching to be on cooperation with evil. That's not to say that my kinds of insider-doubts about the accuracy and sincerity of ND's claims should inform the ultimate legal decision, but watching Catholic groups adopt the approach they have in these cases has made me more sensitive to some of the potential costs of RFRA.
Eduardo On Feb 14, 2014, at 6:52 PM, "Rick Garnett" <rgarn...@nd.edu<mailto:rgarn...@nd.edu>> wrote: From: Rick Garnett <rgarn...@nd.edu<mailto:rgarn...@nd.edu>> Date: February 14, 2014 at 5:42:42 PM MST To: "Levinson, Sanford V" <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> Cc: "religionlawp...@lists.ucla.edu<mailto:religionlawp...@lists.ucla.edu>" <religionlawp...@lists.ucla.edu<mailto:religionlawp...@lists.ucla.edu>>, "conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>" <conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu>> Subject: On implausible burdens Dear colleagues - Today's lively traffic regarding Judge Posner's and ND's lawyer's performance (I think Judge Posner did not behave well) and the (redux) plausibility of ND's claim that the HHS mandate (as modified, in ND's case) imposes an unnecessary and substantial burden on religious exercise within the meaning of RFRA (I think the RFRA claims are strong) makes me think that the following blog post, by our colleague Alan Brownstein, is well worth a read and reflection: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/02/prof-alan-brownstein-on-this-terms-religious-freedom-cases.html Some on this list have shared their view that ND's claim is implausible, or disingenuous, or insincere, or incoherent, or insane, etc. and, clearly, most of us are not sympathetic, even if we are open in principle to religious accommodations. Alan's post - which, as one would expect, is fair, charitable, and thoughtful - is (among other things) an invitation to law-and-religion folks to use the Town of Greece and HHS cases as an occasion to ask ourselves why we sometimes dismiss as insubstantial (or worse) claims of religion-related harm or burdens on religious exercise that we do not understand or that we are not willing to accommodate. I admit: I am probably as mystified by the hostile reactions of those who are mystified by ND's claims (which doesn't mean I think the ultimate question is easy) as they are by those claims. I have long been underwhelmed by the allegations of injury in religious-symbols cases. And, I regard the notion that ND's claims are - in a world where one's irritation at the prospect that, somewhere, a disadvantaged kid is using a voucher to attend a parochial school amounts to a standing-creating wound to conscience - bizarrely outside the realm of possibility (or worse!) as,well, bizarre. But . . . Alan's post is a powerful one and - like Larry Solum would say - "highly recommended." Best, Rick Sent from my iPad On Feb 14, 2557 BE, at 3:38 PM, "Levinson, Sanford V" <slevin...@law.utexas.edu<mailto:slevin...@law.utexas.edu>> wrote: I know I’ve made this point before, but I still don’t see the difference between the “setting in motion” that is generated by sending in the form and the “setting in motion” that occurs when one pays, under penalty of law, one’s taxes that can then be used for all sorts of immoral purposes according to the tenets of one or another religion. If I didn’t know better, I’d simply describe this claim as “frivolous,” but I do realize that people I respect apparently take it seriously. But isn’t it a recipe for the kind of Scalian anarchy that he warned about in Smith? It is a sad truth that out everyday acts of compliance with the law, including tax law, serves to enable the state to do things we (perhaps justifiably) don’t like. I really don’t see how one can distinguish Notre Dame’s claim from the refusal of a postal worker to deliver mail to an abortion clinic on the grounds that it enables their wicked handiwork. I don’t think Barnette applies to this case, since the kids in that case were being forced to proclaim their allegiance, which they treated as an act of idolatry. And, for what it is worth, the Court was crystal clear in viewing it as a Free Speech, not a freedom of religion, case. From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Scot Zentner Sent: Friday, February 14, 2014 3:21 PM To: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> Subject: RE: Posner on oral advocacy in religion caseesri I am not sure, but is it not the case that ND's precise claim is that the exemption part of the form is not the problem, but the fact that the form is also an "instrument" that sets in motion the provision of contraceptive services by the third party? So ND's objection is that the employee would not have contraceptives but for the provision of insurance by ND and its signing of the form. Scot Zentner Professor Political Science CSU, San Bernardino ________________________________ From: conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu> [conlawprof-boun...@lists.ucla.edu<mailto:conlawprof-boun...@lists.ucla.edu>] on behalf of Marci Hamilton [hamilton.ma...@gmail.com<mailto:hamilton.ma...@gmail.com>] Sent: Friday, February 14, 2014 12:46 PM To: Marty Lederman Cc: conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> Subject: Re: Posner on oral advocacy in religion caseesri I don't want to put too fine a point on this, but this entire line of reasoning by ND is utter insanity. The good news is that the religious groups have gotten too clever by half and awakened the women and civil rights groups in the country who did not understand how RFRA operates against the vulnerable. It is, however, the natural end point of the likelihood that believers and institutions would try to exploit RFRA to its absolute maximum limits. Every group/individual is likely to exploit the power they have. That is one of the most important principles the US is built on. But the people, the Constitution, and the state constitutions are supposed to guard against such overreaching. If this is what RFRA requires, it is a violation of the Establishment Clause. All that is left is for someone to claim that their religious faith is substantially burdened when they think about their neighbor/student/employee using a condom (preventing conception), and condoms should not be approved for sale by the FDA because of the burden they are experiencing. If I were on the other side in the ND case, I would suggest a sincerity challenge, and depositions of every higher-up at ND to find out if they have ever used birth control. Marci _______________________________________________ To post, send message to conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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 conlawp...@lists.ucla.edu<mailto:conlawp...@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof 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<mailto: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.
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