How about owning stock in companies that make and sell contraceptives? They had to sign a contract to do that.
The distance between doing the improper thing — selling, paying for, using contraceptives — and buying general health insurance with coverages mandated by the government is attenuated sufficiently for me. However, I understand how one can rhetorically manipulate these matters as Prof. Dane (and I) have done. And that is fully fair game and 5 justices agreed with one rethorical approach and 4 did not. 5 thought religion under RFRA should trump the other values (as a matter of statutory interpretation); 4 did not. On Jul 2, 2014, at 10:32 AM, Marty Lederman <lederman.ma...@gmail.com> wrote: > Perry: I think this is a very important, and contestable, assumption: > "Hobby Lobby is using religious reasoning, not secular reasoning" [in > determining what sort of connection constitutes prohibited "complicity"]. > What is the basis for that assumption? In fact, virtually all theological > analysis I've ever seen about questions of complicity does not consist of > what we would ordinarily call "religious reasoning" -- such as whether God > exists, whether there's a heaven or a hell, whether God commands a particular > thing, or whether and when an embryo has a "soul" or is a "human life" -- > questions that secular authorities are incapable of or forbidden from > assessing. Instead, that reasoning quite closely resembles the ordinary sort > of reasoning that nonreligious authorities -- academic, legislative, and > judicial -- make all the time about complicity and responsibility and > culpability of "accessories". (Of course, the exception is that, within the > religious assessment, the existence and importance of the underlying evil -- > e.g., prevention of implantation of a fertilized embryo -- is itself a > religious question. I am referring, instead, to the questions of > attenuation/proximate cause/responsibility/etc.) > > > On Tue, Jul 1, 2014 at 5:47 PM, Perry Dane <d...@crab.rutgers.edu> wrote: > Steve Jamar writes: "I do not reject the legitimacy nor the religiousity > of the plaintiff’s beliefs. Quite the contrary; I accept them and > undertstand them. But I do not accept that we should accept a complicity > with evil claim when it becomes too attenuated as it is here. The inquiry is > attenuation, not substantive on the sinfulness nor evilness nor “legitimacy” > of the beliefs." > > With all due respect, though, I have always found the "attenuation" claim > the least convincing of the arguments against Hobby Lobby's position. > > As the majority opinion suggests, and as many of us have been saying for > a long time, Hobby Lobby needs to be understood as putting on the table two > distinct religious claims: (1) Certain forms of contraception should not be > used. (2) Hobby Lobby and/or its owners are religiously prohibited from > signing insurance contracts that cover those same forms of contraception. Of > course, Hobby Lobby has religious reasons taking it from claim (1) to claim > (2). But it's not the business of the secular state to second-guess the > quality of that reasoning. In fact, as far as the secular state is > concerned, claim (1) should be essentially irrelevant. All that really > counts is claim (2). > > Imagine an observant Jewish prison inmate who asks for kosher food. The > prison administration tells him, "We're happy to give you kosher food. We'll > also be sure not to give you meat meals and dairy meals within however many > hours of each other you think is religiously significant. But we can't give > you separate (or disposable) plates for your meat and dairy meals. That > would just be too expensive or complicated for us to do." The prisoner > responds, "That's not good enough, I'm afraid. As a matter of Jewish law, > hot foot transfers its 'taste' to plates, which in turn transfer the 'taste' > to other food served on those plates, even if the plates are thoroughly > washed between uses. So I need separate or disposable plates." (There are > more technicalities that I won't get into.) The prison administration > replies, "That's just silly. No 'taste' gets transferred. We understand > that you have religious reasons for not eating meat and dairy food together, > and we'll grant you that accommodation, but this argument you're making about > plates and such is just too attenuated." > > I suspect that most courts, and most of us, would reject this defense of > "attenuation." (This has nothing to do with arguments over compelling > interest, less restrictive means, etc.) Jewish law's conclusion [that (1) a > ban on mixing dairy and meat foods entails (2) a ban on using the same dishes > for dairy and meat foods] might be wacky from a secular or scientific point > of view, but it's not up to the secular state to second-guess that view. > Indeed, all the secular state needs to know is that the prisoner has a > religious need not to eat meat and dairy meals from the same plates. If the > prisoner is to lose, it will not be because his claim is too "attenuated." > > I think the hangup in the Hobby Lobby context is this: We all appreciate > that Jewish law and other system of religious ritual law often conceptualize > the world in wacky-seeming ways very different from ordinary reasoning. The > separate-plates rule is the least of it. (I say all this with all due > respect; I guide some of my life by those wacky conceptualizations.) Hobby > Lobby, on the other hand, seems to be using a form of argument (complicity > with evil) that has a much clearer secular analogue. But that's deceptive. > Hobby Lobby is using religious reasoning, not secular reasoning. That > doesn't mean it should win at the end of the day. But it does mean that's it > objection to signing certain health insurance contracts shouldn't just be > dismissed as too "attenuated." More to the point, we really should -- as an > analytic and doctrinal matter -- just ignore Hobby Lobby's underlying > objection to certain contraceptives; all that should matter is that it > objects for religious reasons to signing the damn contracts. > > Perry > > -- > ********************************************* > Perry Dane > Professor of Law > Rutgers University School of Law > > ********************************************* > > _______________________________________________ > 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org “Great people are those who make others feel that they, too, can become great.” Mark Twain
_______________________________________________ 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.
