RE: The nonprofit contraception services cases
Given the World Health Organization's classification of oral contraception as a Class I carcinogen (along with asbestos, arsenic, and the like), and given the fact that contraception also raises the risk of heart attack and stroke, it's not quite clear who is opposed to health here. See http://monographs.iarc.fr/ENG/Monographs/vol91/index.php and http://abcnews.go.com/Health/birth-control-linked-heart-attack-stroke/story?id=16559498, for example. CC: religionlaw@lists.ucla.edu From: hamilto...@aol.com Subject: Re: The nonprofit contraception services cases Date: Tue, 7 Jan 2014 13:06:25 -0500 To: religionlaw@lists.ucla.edu Because medical treatment and health coverage for it is determined by neutral criteria like science and economics. Religion is not on the same footing-- indeed, for a number of faiths, religion is actually in opposition to health. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 7, 2014, at 12:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: I'm not sure I see a limiting principle for your statement that a doctrine that allows a person or institution to govern my health care goes too far. Don't most employer sponsored plans govern another's health care by specifying what procedures will be covered and what portion will be paid? Such decisions about what procedures to cover and at what rate of reimbursement may be based on a variety of factors--economic, medical, employee morale, competition in the market, etc. If an employer can legitimately apply such economic considerations to govern the health care plan that it chooses to provide for its employees, why shouldn't it also be allowed to apply moral or religious criteria. In fact, saying it can't apply religious criteria would single out such criteria out for unique disfavor which would itself raise First Amendment and RFRA claims. Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud 1. I have a problem over Notre Dame applying its religious beliefs to the provision of health services to others. In drawing lines about religious freedom in a free society, I would say that, while in appropriate cases the state can protect one's religious freedom in one's own health care or own conduct, a doctrine that allows a person or institution to govern my health care goes too far. I realize that prevailing doctrine may have passed me by, but I have to wonder how serious the interference with religion is when the law requires a University to provide its employees with the ability to choose to have procedures that offend the person's or institution's religious principles. I realize this may be repetitious, but Derek's comment provoked me. 2. I do think that if a court is not permitted to determine the sincerity of beliefs or substantiality of the alleged interference, there is a serious problem. Those of you who thought a religion based on our creator's endowment of us with certain inalienable rights was ludicrous should see this article: Group wants Satan monument placed where one of the Ten Commandments stood By Sean Murphy, Associated Press Posted: 01/06/2014 09:21:44 PM PST Updated: 01/06/2014 09:21:46 PM PS http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews It sounds like the beginning of a joke: A Hindu leader, the satirical Church of the Flying Spaghetti Monster and a satanic group all applied for a monument... The satanic group wants a statue of Satan placed at the Oklahoma state Capitol where a Ten Commandments monument was placed in 2012. Similar requests have been made by a Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster. The New York-based Satanic Temple formally submitted its application to a panel that oversees the Capitol grounds, including an artist's rendering that depicts 7-foot-tall Satan as Baphomet, a goat-headed figure with horns, wings and a long beard that's often used as a symbol of the occult. In the rendering, Satan is sitting in a pentagram-adorned throne with smiling children next to him Jon On 2014-01-06 20:45, Gaubatz, Derek wrote: It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed
Re: The nonprofit contraception services cases
Stuart, is your position that all women should stop using oral contraception, and/or (2) employers are better equipped to weigh the benefits/risks of contraception than women and their physicians? On Jan 7, 2014, at 2:05 PM, Stuart Buck stuartb...@msn.commailto:stuartb...@msn.com wrote: Given the World Health Organization's classification of oral contraception as a Class I carcinogen (along with asbestos, arsenic, and the like), and given the fact that contraception also raises the risk of heart attack and stroke, it's not quite clear who is opposed to health here. See http://monographs.iarc.fr/ENG/Monographs/vol91/index.php and http://abcnews.go.com/Health/birth-control-linked-heart-attack-stroke/story?id=16559498, for example. CC: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu From: hamilto...@aol.commailto:hamilto...@aol.com Subject: Re: The nonprofit contraception services cases Date: Tue, 7 Jan 2014 13:06:25 -0500 To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Because medical treatment and health coverage for it is determined by neutral criteria like science and economics. Religion is not on the same footing-- indeed, for a number of faiths, religion is actually in opposition to health. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 7, 2014, at 12:51 PM, Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org wrote: I'm not sure I see a limiting principle for your statement that a doctrine that allows a person or institution to govern my health care goes too far. Don't most employer sponsored plans govern another's health care by specifying what procedures will be covered and what portion will be paid? Such decisions about what procedures to cover and at what rate of reimbursement may be based on a variety of factors--economic, medical, employee morale, competition in the market, etc. If an employer can legitimately apply such economic considerations to govern the health care plan that it chooses to provide for its employees, why shouldn't it also be allowed to apply moral or religious criteria. In fact, saying it can't apply religious criteria would single out such criteria out for unique disfavor which would itself raise First Amendment and RFRA claims. Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. -Original Message- From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud 1. I have a problem over Notre Dame applying its religious beliefs to the provision of health services to others. In drawing lines about religious freedom in a free society, I would say that, while in appropriate cases the state can protect one's religious freedom in one's own health care or own conduct, a doctrine that allows a person or institution to govern my health care goes too far. I realize that prevailing doctrine may have passed me by, but I have to wonder how serious the interference with religion is when the law requires a University to provide its employees with the ability to choose to have procedures that offend the person's or institution's religious principles. I realize this may be repetitious, but Derek's comment provoked me. 2. I do think that if a court is not permitted to determine the sincerity of beliefs or substantiality of the alleged interference, there is a serious problem. Those of you who thought a religion based on our creator's endowment of us with certain inalienable rights was ludicrous should see this article: Group wants Satan monument placed where one of the Ten Commandments stood By Sean Murphy, Associated Press Posted: 01/06/2014 09:21:44 PM PST Updated: 01/06/2014 09:21:46 PM PS http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews It sounds like the beginning of a joke: A Hindu leader, the satirical Church of the Flying Spaghetti Monster and a satanic group all applied for a monument... The satanic group wants a statue of Satan placed at the Oklahoma state Capitol where a Ten Commandments monument was placed in 2012. Similar requests have been made by a Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster. The New York-based Satanic Temple formally submitted its application to a panel that oversees the Capitol grounds, including an artist's rendering that depicts 7-foot-tall Satan as Baphomet, a goat-headed figure with horns, wings and a long beard that's often used as a symbol of the occult. In the rendering, Satan is sitting in a pentagram-adorned throne
RE: The nonprofit contraception services cases
If I understand the argument below made by Americans United, it seems to me a non sequitur. Why can't it be that an activity (such as providing health benefits) is secular and yet the persons or organizations engaged in it have a religious-freedom interest in being able to pursue it in ways that do not violate their religious tenets? Would Americans United argue that Adele Sherbert's work (in Sherbert v. Verner) was religious activity because she wanted to pursue it in a way that did not violate her beliefs about the Sabbath? - 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) 962-4996 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/mirrorofjustice From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper Sent: Monday, January 06, 2014 3:21 PM To: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases One further note, related to Marci's question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are secular expenses. See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame's receipt of public funds, the University argued that purchasing health insurance is administrative in nature and does not constitute religious instruction or activity. Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can't have it both ways - health insurance is either a secular expense or involves religious exercise, but it can't be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Notre Dame is allowed (I assume - again, I am just an employee and am not involved in admissions or with the University Counsel's work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh's post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty
RE: The nonprofit contraception services cases
Women can and should decide whatever they want, hopefully taking into account all of the risks and tradeoffs that are currently obscured by claims regarding a conflict between religion and health. Now, in the vast majority of cases, contraception is covered by health insurance. In the rare event that an employer objects, well, contraception is available for $9 a month at Walmart, Target, and more (see http://www.reproductiveaccess.org/contraception/lowcost_pills.htm), which, by the way, is less than the co-pay for the vast majority of drugs that are covered by insurance. If even $9 a month is still too much for someone's budget, there are 4,400 Title X clinics in the U.S. In light of these facts, it's hard to see why it's so important to strong-arm a few nuns, monks, even Hobby Lobby, no matter how silly and misguided one might think them. From: lip...@au.org To: religionlaw@lists.ucla.edu Subject: Re: The nonprofit contraception services cases Date: Tue, 7 Jan 2014 19:30:40 + Stuart, is your position that all women should stop using oral contraception, and/or (2) employers are better equipped to weigh the benefits/risks of contraception than women and their physicians? On Jan 7, 2014, at 2:05 PM, Stuart Buck stuartb...@msn.com wrote: Given the World Health Organization's classification of oral contraception as a Class I carcinogen (along with asbestos, arsenic, and the like), and given the fact that contraception also raises the risk of heart attack and stroke, it's not quite clear who is opposed to health here. See http://monographs.iarc.fr/ENG/Monographs/vol91/index.php and http://abcnews.go.com/Health/birth-control-linked-heart-attack-stroke/story?id=16559498, for example. CC: religionlaw@lists.ucla.edu From: hamilto...@aol.com Subject: Re: The nonprofit contraception services cases Date: Tue, 7 Jan 2014 13:06:25 -0500 To: religionlaw@lists.ucla.edu Because medical treatment and health coverage for it is determined by neutral criteria like science and economics. Religion is not on the same footing-- indeed, for a number of faiths, religion is actually in opposition to health. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 7, 2014, at 12:51 PM, Gaubatz, Derek dgaub...@imb.org wrote: I'm not sure I see a limiting principle for your statement that a doctrine that allows a person or institution to govern my health care goes too far. Don't most employer sponsored plans govern another's health care by specifying what procedures will be covered and what portion will be paid? Such decisions about what procedures to cover and at what rate of reimbursement may be based on a variety of factors--economic, medical, employee morale, competition in the market, etc. If an employer can legitimately apply such economic considerations to govern the health care plan that it chooses to provide for its employees, why shouldn't it also be allowed to apply moral or religious criteria. In fact, saying it can't apply religious criteria would single out such criteria out for unique disfavor which would itself raise First Amendment and RFRA claims. Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud 1. I have a problem over Notre Dame applying its religious beliefs to the provision of health services to others. In drawing lines about religious freedom in a free society, I would say that, while in appropriate cases the state can protect one's religious freedom in one's own health care or own conduct, a doctrine that allows a person or institution to govern my health care goes too far. I realize that prevailing doctrine may have passed me by, but I have to wonder how serious the interference with religion is when the law requires a University to provide its employees with the ability to choose to have procedures that offend the person's or institution's religious principles. I realize this may be repetitious, but Derek's comment provoked me. 2. I do think that if a court is not permitted to determine the sincerity of beliefs or substantiality of the alleged interference, there is a serious problem. Those of you who thought a religion based on our creator's endowment of us with certain inalienable rights was ludicrous should see this article: Group wants Satan monument placed where one of the Ten Commandments stood By Sean Murphy, Associated Press Posted: 01/06/2014 09:21:44 PM PST Updated: 01/06/2014 09:21:46 PM PS http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed
Re: The nonprofit contraception services cases
Marci, Could you provide a bit more context on your statement below: What strikes me as odd is that a university would welcome nonbelievers as ND does and publicly support the free exercise of religion, but then tell its nonbelieving female students that they must follow the school's beliefs on reproductive health and not their own. What exactly strikes you as odd? Are you implying that the the nonbeliving female students beliefs about reproductive health constitute the free exercise of religion? As I understand it, ND policy states two things: (a) All students attending ND are expected to adhere to the ND conduct code, which includes no sexual relations between unmarried individuals, regardless of gender; and (b) ND is religiously opposed to paying for contraception for students or employees and therefore wants such coverage excluded from the health insurance it provides. I would appreciate it if you would provide some further clarity on your statement. Thanks. Will Esser Charlotte, North Carolina From: Marci Hamilton hamilto...@aol.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Tuesday, January 7, 2014 1:01 PM Subject: Re: The nonprofit contraception services cases Courts can always test sincerity and the substantiality of the burden though in these cases, several courts have treated substantial as functionally irrelevant. What strikes me as odd is that a university would welcome nonbelievers as ND does and publicly support the free exercise of religion, but then tell its nonbelieving female students that they must follow the school's beliefs on reproductive health and not their own. The element in all of these cases that is most troubling in my view is the intent by the entity in power -- school or employer -- to impose its faith on nonbelievers it brings in itself. It is most troubling for the for-profit employer like Hobby Libby though, because the employer may not discriminate in hiring based on religion. So there is a legally created arrangement that employees should be able to presume their livelihood is not related to their faith but rather their contributions to the marketplace as employees. Why HL would then think it can or should tailor compensation benefit packages by faith is troubling. And new given it did not do so before the ACA, at least according to press accounts. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 7, 2014, at 12:23 PM, mallamud malla...@camden.rutgers.edu wrote: 1. I have a problem over Notre Dame applying its religious beliefs to the provision of health services to others. In drawing lines about religious freedom in a free society, I would say that, while in appropriate cases the state can protect one's religious freedom in one's own health care or own conduct, a doctrine that allows a person or institution to govern my health care goes too far. I realize that prevailing doctrine may have passed me by, but I have to wonder how serious the interference with religion is when the law requires a University to provide its employees with the ability to choose to have procedures that offend the person's or institution's religious principles. I realize this may be repetitious, but Derek's comment provoked me. 2. I do think that if a court is not permitted to determine the sincerity of beliefs or substantiality of the alleged interference, there is a serious problem. Those of you who thought a religion based on our creator's endowment of us with certain inalienable rights was ludicrous should see this article: Group wants Satan monument placed where one of the Ten Commandments stood By Sean Murphy, Associated Press Posted: 01/06/2014 09:21:44 PM PST Updated: 01/06/2014 09:21:46 PM PS http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews It sounds like the beginning of a joke: A Hindu leader, the satirical Church of the Flying Spaghetti Monster and a satanic group all applied for a monument... The satanic group wants a statue of Satan placed at the Oklahoma state Capitol where a Ten Commandments monument was placed in 2012. Similar requests have been made by a Hindu leader in Nevada, an animal rights group and the satirical Church of the Flying Spaghetti Monster. The New York-based Satanic Temple formally submitted its application to a panel that oversees the Capitol grounds, including an artist's rendering that depicts 7-foot-tall Satan as Baphomet, a goat-headed figure with horns, wings and a long beard that's often used as a symbol of the occult. In the rendering, Satan is sitting in a pentagram-adorned throne with smiling children next to him
Re: The nonprofit contraception services cases
This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, January 03, 2014 1:42 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else
RE: The nonprofit contraception services cases
Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ___ 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
Re: The nonprofit contraception services cases
And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://mirrorofjustice.blogs.com/ Twitter: @RickGarnett https://twitter.com/RickGarnett *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees
Re: The nonprofit contraception services cases
Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.comwrote: And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://mirrorofjustice.blogs.com/ Twitter: @RickGarnett https://twitter.com/RickGarnett *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3
Re: The nonprofit contraception services cases
Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page ___ 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
Re: The nonprofit contraception services cases
issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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. ___ 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: The nonprofit contraception services cases
One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you
Re: The nonprofit contraception services cases
This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because
Re: The nonprofit contraception services cases
://mirrorofjustice.blogs.com/ Twitter: @RickGarnett https://twitter.com/RickGarnett *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in *Little Sisters*: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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. ___ 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
RE: The nonprofit contraception services cases
It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides. Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires.So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.orgmailto:lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School ___ 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: The nonprofit contraception services cases
Ok-- I am confused. Is Derek saying federal funds subsidiz Notre Dame's health care system? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 8:45 PM, Gaubatz, Derek dgaub...@imb.org wrote: It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides.Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires.So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School ___ 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
Re: The nonprofit contraception services cases
The government's brief in *Little Sisters*: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.comwrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.comwrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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: The nonprofit contraception services cases
Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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.
Re: The nonprofit contraception services cases
They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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. ___ 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: The nonprofit contraception services cases
Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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. ___ 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.
Re: The nonprofit contraception services cases
I meant that shorthand only to repeat what I wrote in my post: The *Little Sisters* case reveals a lacuna in the government's secondary accommodation regulation that the government itself presumably did not anticipate--namely, that the regulation does not guarantee contraception coverage for female employees where (i) their employer is a nonprofit religious organization that objects to such coverage; (ii) the employer self-insures; (iii) the health plan is a church plan; and (iv) the third-party administrator of the church plan itself objects to providing such coverage. The government represented to the district court in *Little Sisters *that it continues to consider potential options to fully and appropriately extend the consumer protections provided by the regulations to self-insured church plans. If and when the government amends its regulations to deal with such a situation, perhaps the *Little Sisters*case will look more like the *Notre Dame* case. But in the meantime, the Little Sisters' employees would not receive contraception coverage if the Little Sisters were to make the self-certification of their objection. On Fri, Jan 3, 2014 at 1:41 PM, Marci Hamilton hamilto...@aol.com wrote: Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in *Little Sisters*: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.comwrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: The nonprofit contraception services cases
And if the government admits that the services are not going to be provided by either the Little Sisters directly or by the Christian Brother Services as TPA, why is the government so vigorously opposing the issuance of an injunction? Why force the Little Sisters to execute a certification that has no practical effect of any kind? It seems like the prudent and practical thing for the government would be to simply consent to the injunction, rather than spending significant taxpayer dollars on a case which (given its specific facts) does not advance any governmental interest. Will Will Esser Charlotte, North Carolina From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Friday, January 3, 2014 12:08 PM Subject: Re: The nonprofit contraception services cases Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else has mentioned it, I will: Eugene recently published a remarkable series of posts on the case -- so much there that virtually everyone on this listserv is sure to agree with some arguments and disagree with others. It's an amazing public service, whatever one thinks of the merits. He and I turned the posts into a single, 53-page (single-spaced!) Word document for your convenience: www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx I've just started my own series of posts on the case on Balkinization -- links to the first three below. The second is about the thorny contraception/abortifacient issue (nominally) in play in the two cases the Court granted. In the third post, I endeavor to explain that the case is fundamentally different from what all the courts and plaintiffs (and press) have assumed, because there is in fact no employer mandate to provide contraception coverage. http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html Thanks to those of you who have already offered very useful provocations and arguments on-list; I'd welcome further reactions, of course. ___ 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.___ 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.
