RE: Posner on oral advocacy in religion caseesri
I think Marty and I are on the same page with point 4. below. If the ACA as originally enacted explicitly carved out an exemption for religious employers so that their employees would not receive an insurance benefit that everyone else received for free (regardless of what that benefit might be), how should we refer to the money these employees would have to pay for comparable insurance coverage or the possibility that some of these employees might not be able to afford to purchase such coverage as a supplemental plan - a harm, a cost, a burden, surely it is something. It is one thing to say that this is a price that we as a society should be willing to pay to support religious liberty. Or, as I would argue, that the government should pick up this cost directly. It is another thing to say that the failure to provide these women the same benefits everyone else receives should be irrelevant to our analysis and need not be taken into account. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 14, 2014 3:43 PM To: Kurt Lash Cc: Law & Religion issues for Law Academics; Eric J Segall; David Bernstein; conlawp...@lists.ucla.edu Subject: Re: Posner on oral advocacy in religion caseesri 1. The form only applies to "self-insured" plans run by third-party administrators, such as Notre Dame's employee plan. Notre Dame has the option of switching to a insurer-run plan, as it has already done with its Aetna-run student plan. If it treated its employee plan the way it treats its student plan -- using Aetna rather than an Aetna subsidiary TPA -- the form would be inapposite. (ND also has the option of cancelling its plans altogether.) 2. The form itself, in any event, does not involve ND "authorizing" anyone to do anything. Meritaine is obliged to provide the coverage as a matter of federal law by dint of ND's opt-out, not because ND has "authorized" them to do so. 3. At any rate, Posner asked his question precisely in order to test whether the form itself was the problem: He asked whether ND would have the same objection if there were no such form and ND instead had to send its opt-out notification to the federal government. The answer was "yes." 4. I don't understand the argument that whether the exemption would impose a harm on the employees "begs" the question. Yes, of course if the law -- the Constitution or RFRA -- requires an exemption, then the ND employees will not, under the law, be entitled to the benefit that everyone else receives. But that's true in every exemption case. The point is that, like Social Security, police and fire protection, etc., everyone is entitled to this benefit unless an exemption is mandated. It is in that sense that the women who work for ND will be "burdened" -- they'll have to pay for an important health service that everyone else in America will receive without such payment. On Fri, Feb 14, 2014 at 6:18 PM, Kurt Lash mailto:kurtla...@gmail.com>> wrote: Isn't ND claiming that the form names notre dame as the entity authorizing a third party to do harm (from the perspective of the church), and that the form in fact legally authorizes the third party to do that harm? And isn't this distinguishable from the tax dissent cases where the allegedly harmful actions of the government cannot be reasonably viewed as expressly authorized by a named person or entity, and which involve a far more generalized grievance? As for whether ND imposes a harm by denying a legal benefit, this begs the question regarding whether the ACA, which incorporates by reference the protections of RFRA, actually grants a benefit in precisely this kind of case. Kurt Lash ___ 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.
Re: Posner on oral advocacy in religion caseesri
1. The form only applies to "self-insured" plans run by third-party administrators, such as Notre Dame's employee plan. Notre Dame has the option of switching to a insurer-run plan, as it has already done with its Aetna-run student plan. If it treated its employee plan the way it treats its student plan -- using Aetna rather than an Aetna subsidiary TPA -- the form would be inapposite. (ND also has the option of cancelling its plans altogether.) 2. The form itself, in any event, does not involve ND "authorizing" anyone to do anything. Meritaine is obliged to provide the coverage as a matter of federal law by dint of ND's opt-out, not because ND has "authorized" them to do so. 3. At any rate, Posner asked his question precisely in order to test whether the form itself was the problem: He asked whether ND would have the same objection if there were no such form and ND instead had to send its opt-out notification to the federal government. The answer was "yes." 4. I don't understand the argument that whether the exemption would impose a harm on the employees "begs" the question. Yes, of course if the law -- the Constitution or RFRA -- requires an exemption, then the ND employees will not, under the law, be entitled to the benefit that everyone else receives. But that's true in every exemption case. The point is that, like Social Security, police and fire protection, etc., everyone is entitled to this benefit *unless* an exemption is mandated. It is in that sense that the women who work for ND will be "burdened" -- they'll have to pay for an important health service that everyone else in America will receive without such payment. On Fri, Feb 14, 2014 at 6:18 PM, Kurt Lash wrote: > Isn't ND claiming that the form names notre dame as the entity authorizing > a third party to do harm (from the perspective of the church), and that the > form in fact legally authorizes the third party to do that harm? And isn't > this distinguishable from the tax dissent cases where the allegedly harmful > actions of the government cannot be reasonably viewed as expressly > authorized by a named person or entity, and which involve a far more > generalized grievance? As for whether ND imposes a harm by denying a legal > benefit, this begs the question regarding whether the ACA, which > incorporates by reference the protections of RFRA, actually grants a > benefit in precisely this kind of case. > > Kurt Lash > > Sent from my iPad > > On Feb 14, 2014, at 5:01 PM, Eric J Segall wrote: > > > I am guessing Notre Dame receives millions of dollars a year from the > federal government requiring all kinds of contracts and forms. It is not a > serious argument that sending that same government a notice to opt out of a > part of an insurance plan is a substantial burden. I suspect this was part > of Posner's frustration. > > > Thus, Notre Dame is saying it does not want anyone providing its > students/employees contraception. This is offensive in a world where we > know that many top level people at Notre Dame use contraceptives. > > > Best, > > > Eric > > > > ___ > To post, send message to 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 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.
RE: Posner on oral advocacy in religion caseesri
While I am sympathetic to several of the arguments raised on Hobby Lobby's (and Notre Dame's) behalf in these various cases, the argument that people are not burdened in a legally cognizable way if they lose benefits to which they would otherwise be entitled is not persuasive to me. As a general matter, I think the loss of benefits is a cognizable burden both for Establishment Clause and Free Exercise purposes. Thus denying an individual a generally available benefit to which they would otherwise be entitled to accommodate some other person's religious practice is a burden for Establishment Clause purposes just as denying an individual a generally available benefit to which they would otherwise be entitled if they obey the dictates of their faith is a burden for Free Exercise purposes (e.g. Sherbert v. Verner). I remain unconvinced that a finding in favor of plaintiffs in these RFRA suits requires the loss of such benefits. And, of course, the existence of a burden does not necessarily mean that it cannot be justified and is constitutionally impermissible. But these are very different arguments than one suggesting that the loss or denial of benefits does not constitute a burden and can be ignored in the analysis. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 14, 2014 2:32 PM To: David Bernstein; Law & Religion issues for Law Academics Cc: conlawp...@lists.ucla.edu; zent...@csusb.edu Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, mailto:davidebernst...@aol.com>> wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ 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 To subscribe, unsubscribe, change
Re: Posner on oral advocacy in religion caseesri
I think women do have a right here, which is the right not to be discriminated against on the basis of gender. We are way outside the bounds of Hosanna-Tabor, so the right not to be discriminated against based on gender stands. Marty's point is correct that there is global equal treatment here, which undermines ND's arguments based on precedent and common sense. But there is also a more specific equality argument. This is an attempt to force women to pay for their medical care, which is specific to women, while men are covered. As everyone knows, it's not simply medical care to avoid pregnancy, but also medical care for many ailments (some very painful), which require hormonal treatment. Whether it is $5/year or $2,000/year, misses the point. The govt's interest in ensuring that women, as a class, are not shortchanged in the health care system to their medical detriment must trump the de minimis burden on ND. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman To: David Bernstein ; Law & Religion issues for Law Academics Cc: conlawprof ; zentner Sent: Fri, Feb 14, 2014 5:34 pm Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ 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.
Re: Posner on oral advocacy in religion caseesri
Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which *everyone *is entitled? Likewise, under the ACA, virtually *all *Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that *must* include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, *just as virtually every other plan must*. Notre Dame, then, is endeavoring to deny its employees and students what *all other employees and students *are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, wrote: > Allow me to point out, given the tenor of some recent comments, that > regardless of the outcome of this case, Notre Dame can't and won't stop > anyone from buying and using contraceptives--they just wouldn't be covered > by their health insurance. And given that no one is forced to work for or > be a student at Notre Dame, all this would really means is that when one is > deciding whether to be a student at or work for Notre Dame, one would do so > with the knowledge that contraceptive coverage isn't available. If you're > contraceptives are going to cots, say, $400 a year, you just add that in to > the cost of your tuition or deduct that from your expected salary. I'm not > seeing any great deprivation of liberty under those circumstances. > > > > > > > ___ > To post, send message to 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 > 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 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.
Re: Posner on oral advocacy in religion caseesri
Yes, Scott, that is one part of ND's claim -- that the form not only notifies the government and Aetna/Meritain of ND's objection, but also "sets in motion," or "triggers" or "enables" Aetna and Meritain to offer independent coverage. As I've discussed at greater length here -- http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html-- that argument seems to me to prove way too much, as it might be raised in any number of cases (exemptions from the draft; judicial recusal; a pharmacist who refuses to dispense a drug) in which the objector's objection is what "triggers" the obligation of someone else to do what the objector will not. And as to the argument that the certification form is technically an "instrument" of ND's own plan, I'm not sure why that would matter in the complicity analysis but, in any event, that's why Posner asked the hypo in which that is not the case . . . and counsel said ND would still have an objection, even if the certification were sent directly to the USG and were not a plan instrument. On Fri, Feb 14, 2014 at 4:21 PM, Scot Zentner wrote: > 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 [ > conlawprof-boun...@lists.ucla.edu] on behalf of Marci Hamilton [ > hamilton.ma...@gmail.com] > *Sent:* Friday, February 14, 2014 12:46 PM > *To:* Marty Lederman > > *Cc:* 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 > 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 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.
