Re: Attenuation
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
RE: Attenuation
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.edumailto: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 discoursehttp://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
Re: Attenuation
Steve Jamar wrote: [1] How about owning stock in companies that make and sell contraceptives? They had to sign a contract to do that. [2] 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. Point 1 simply confirms that we all draw have to draw lines of causation and moral responsibility somewhere, and those different lines will be embedded in a variety of discourses and grounded in a variety of different assumptions. As to point 2, I don't think that 5 justices agreed with Hobby Lobby's conclusions about causation and moral responsibility. They simply, and correctly, accepted them as religious views. It's as if Hobby Lobby had just said, for religious reasons, we can't sign a document that alludes to 'Plan B, Ella, or intrauterine devices.' It's just something about those words. ___ 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.
Attenuation
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.
