And in the standard complicity-with-evil analyses, including religious ones, 
the degree of connection that's permissible is affected by the perceived 
gravity of the harm, which as Marty notes is a religious determination.  
Gravity of the harm, for example, is part of the "material cooperation" 
analysis in Catholic thought, which essentially involves a proportionality 
test.  So even the reasoning "this degree of connection is too much" is a 
product, in part, of the religious determination.  I think if people shared the 
Greens' belief that the emergency contraceptives kill a human person, they'd be 
more sympathetic to the claim.

-----------------------------------------
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: 651 962 4918
Fax: 651 962 4881
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com
----------------------------------------------------------------------------
________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Perry Dane [d...@crab.rutgers.edu]
Sent: Wednesday, July 02, 2014 10:20 AM
To: Marty Lederman
Cc: Law & Religion issues for Law Academics
Subject: Re: Attenuation


Marty,

I would define religious reasoning as reasoning within a religious discourse or 
tradition used by religious people to reach religiously-significant 
conclusions.  Religious reasoning need not be metaphysical or transcendent or 
explicitly spiritual.  And it can certainly resemble analogous secular 
discourse.  But it is still distinct.

Three observations:

1. Look again at my Jewish separate-plates example.  Rabbinic discussions of 
these sorts of questions rarely involve discussions about "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.'"  So I return to 
my question:  Should the prison authorities be heard to argue that the 
connection between the underlying rule against mixing dairy and meat and the 
subsidiary conclusion that those foods must be eaten on separate plates is just 
too "attenuated"?

2. It's a staple of first-year torts that reasoning about proximate cause is 
inextricably intertwined with various policy and other concerns.  And even if 
we disagree with that, and adopt Ernie Weinrib's view that proximate cause 
reasoning is built into the structure of tort law, that would still suggest 
that it is embedded in a specific, constrained, discourse that follows certain 
rules and makes certain very deep assumptions peculiar to that discourse.  That 
would suggest that there exist a whole bunch of constrained discourses about 
notions of causation, responsibility, and the like.  Each of those constrained 
discourses is, explicitly or implicitly, grounded in certain assumptions and 
world-views.  For example, in Peter Singer's thoroughgoing utilitarian 
discourse<http://www.utilitarianism.net/singer/by/1972----.htm>, each of us has 
a direct affirmative responsibility to try to alleviate famines and other forms 
of suffering around the world, since " if it is in our power to prevent 
something bad from happening, without thereby sacrificing anything of 
comparable moral importance, we ought, morally, to do it."  That is certainly a 
more radical view than that taken by tort law, or by more deontological moral 
discourses, or even by Hobby Lobby.

Now, in the light of all that, it seems to me quite reasonable to assume that 
Hobby Lobby is (however inarticulately) reaching its conclusions about 
causation and responsibility based on forms of reasoning or instinct embedded 
in its own religious assumptions and priorities, though loosely analogous, of 
course, to other forms of reasoning about causation and responsibility.

3. Note that in the Establishment Clause context, we're (usually rightly, I 
think) quite willing to describe certain propositions (such as "creation 
science") as religious even though their proponents claim they are not and in 
fact carefully try to exclude all mention of "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.'"

On 07/02/2014 10:32 am, Marty Lederman 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<mailto: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

*********************************************




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