RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[West, Ellis]

I was explaining Madison's statement in his Memorial and Remonstrance that 
"religion is [should be] wholly exempt from its [government's] cognizance" and 
why it cannot be interpreted as an argument that religious liberty entails a 
right to religion-based exemptions from valid secular laws.  As for my own 
view, I have no problem with legislatures, when passing laws, taking into 
account the burden those laws might impose on different groups of people, 
whether they are small businesses, a religious sect, or those with 
non-religious consciences, but if exemptions are given to whatever groups, it 
should be for reasons of compassion and/or politics-not because those groups 
have a natural or constitutional right to them.

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Gaubatz, Derek
Sent: Monday, August 19, 2013 4:55 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

"To avoid a conflict over religion, government should simply take no cognizance 
of religion, and if it will do that, then 'no man's right' to religious freedom 
will be abridged by civil society."

I'm not sure whether this is a view that Professor Ellis is somehow imputing to 
Madison (wrongly in my view) or if it's his own view, but respectfully I'd be 
hard-pressed to find a view more demonstrably false.   Laws that take no 
cognizance of religion inevitably lead to conflict.   (We wouldn't be having 
this debate about the ACA and this listserv wouldn't exist if it were 
otherwise).   The reason is simple:   the vast majority of the citizens in this 
country (and even more so of the world) hold strong religious views.   These 
religious views are at the core of who these people are.   When a government 
takes no cognizance of the religious practices and beliefs of its citizens in 
adopting its laws, it ignores something fundamental about the nature of its 
citizens and inevitably sets the stage for conflict and the potential 
disruption to civil society. To believers who can't follow their 
consciences informed by their religious views, it matters not whether the law 
that stymies them was motivated by sectarian or secular motives, either way 
they face the burden of a government burden on their conscience.   The fact 
that Madison was writing in a context in which the more immediate problem was 
laws motivated by sectarian prejudices in no way supports the idea that he 
would have been a cheerleader for secular laws that burdened the faithful.

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.

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Monday, August 19, 2013 4:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

Richard, The quoted passage below is so dense and complicated that I will not 
attempt to do justice to it here.  I would say just a few things.  First, the 
M&R was written in opposition to a law that would have, in effect, established 
Christianity in Virginia.  This passage needs to be interpreted with that in 
mind.  Second, there is no question but what Madison is saying that humans 
should obey God above all else, and presumably he would say they have a moral 
right to do that even when what they think God commands conflicts with what 
government commands, i.e., they have a right to engage in civil disobedience.  
Does that, however, mean that he thought that government should not punish them 
for their disobedience?  After all, although Madison does not explicitly say it 
here, I'm confident that he believes that good government is ordained by God in 
order to protect our God-given rights to life, liberty, and property.  In other 
words, rulers, as well as private individuals, have a duty to render to God 
certain kinds of behavior.  This means that what the rulers think God requires 
of them will sometimes conflict with what individuals think God requires of 
them.  Does Madison think that when that conflict occurs, the individual or the 
minority will should trump the rulers' or majority's will?  Third, YES, he 
does, BUT ONLY when the government or majority intentionally and explicitly 
takes a position on religious issues.  To avoid a conflict over religion, 
government should simply take no cognizance of religion, and if it will do 
that, then "no man's right" to religious freedom wil

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Richard Dougherty]

Ellis:
This is very helpful, and I think largely right.  I would need more
convincing, though, on this particular point -- when does the government
take cognizance of religion? And who makes the decision about when that has
occurred?  Is it sufficient for the government to say, "we are not taking
cognizance of religion"?  That, it seems, is a large part of the
contemporary debate.  Madison does say that the majority might trespass on
the rights of the minority; surely he wouldn't say that they can avoid that
simply by saying they are not doing trespassing on the rights of the
minority?

I think you are exactly right that he would not sanction across-the-board
exemptions, especially if the exemptions did not promote republican
liberty, including the protection of natural rights.

A short follow-up on Douglas Laycock's point, too; it is true that Locke
predated the founding, and thus his exclusion of Catholics and Muslims from
civil society might not be germane, but many early state constitutions did
prohibit Catholics from holding office, thus from being full citizens.

Best,
Richard Dougherty

On Mon, Aug 19, 2013 at 3:10 PM, West, Ellis  wrote:

>  Richard, The quoted passage below is so dense and complicated that I
> will not attempt to do justice to it here.  I would say just a few things.
> First, the M&R was written in opposition to a law that would have, in
> effect, established Christianity in Virginia.  This passage needs to be
> interpreted with that in mind.  Second, there is no question but what
> Madison is saying that humans should obey God above all else, and
> presumably he would say they have a moral right to do that even when what
> they think God commands conflicts with what government commands, i.e., they
> have a right to engage in civil disobedience.  Does that, however, mean
> that he thought that government should not punish them for their
> disobedience?  After all, although Madison does not explicitly say it here,
> I’m confident that he believes that good government is ordained by God in
> order to protect our God-given rights to life, liberty, and property.  In
> other words, rulers, as well as private individuals, have a duty to render
> to God certain kinds of behavior.  This means that what the rulers think
> God requires of them will sometimes conflict with what individuals think
> God requires of them.  Does Madison think that when that conflict occurs,
> the individual or the minority will should trump the rulers’ or majority’s
> will?  Third, YES, he does, BUT ONLY when the government or majority
> intentionally and explicitly takes a position on religious issues.  To
> avoid a conflict over religion, government should simply take no cognizance
> of religion, and if it will do that, then “no man’s right” to religious
> freedom will be abridged by civil society.  Fourth, if Madison were arguing
> here for a right to religion-based exemptions from valid, secular laws on
> the grounds that they, too, abridge a man’s right to religious freedom,
> then the only way that a man’s right to religious freedom could never be
> abridged by government would be for the government to grant ALL
> religion-based exemptions.  Of course, no one, so far as I know, has ever
> taken such a position, and it is beyond belief that Madison was intending
> to take such a position.  In short, it is difficult, if not impossible, to
> reconcile the idea that Madison was arguing for religion-based exemptions
> with his statement that “Religion is [or should be] wholly exempt from its
> [civil society’s] cognizance.” 
>
> ** **
>
> Ellis M. West
>
> Emeritus Professor of Political Science 
>
> University of Richmond, VA 23173
>
> 804-289-8536
>
> ew...@richmond.edu
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Richard Dougherty
> *Sent:* Monday, August 19, 2013 2:05 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: Harmony and the freedom of religion (RE: New Twist On
> Challenge to ACA Contraceptive Mandate)
>
> ** **
>
> ** **
>
> I agree with much of what is said here, but don't think it fully captures
> Madison's argument in the M&R.  Here is what he says:
>
> The Religion then of every man must be left to the conviction and
> conscience of every man; and it is the right of every man to exercise it as
> these may dictate. This right is in its nature an unalienable right. It is
> unalienable, because the opinions of men, depending only on the evidence
> contemplated by their own minds cannot follow the dictates of other men: It
> is unalienable also, because what is here a right towards men, is a duty
> towards the Creator. I

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Gaubatz, Derek]

"To avoid a conflict over religion, government should simply take no cognizance 
of religion, and if it will do that, then 'no man's right' to religious freedom 
will be abridged by civil society."

I'm not sure whether this is a view that Professor Ellis is somehow imputing to 
Madison (wrongly in my view) or if it's his own view, but respectfully I'd be 
hard-pressed to find a view more demonstrably false.   Laws that take no 
cognizance of religion inevitably lead to conflict.   (We wouldn't be having 
this debate about the ACA and this listserv wouldn't exist if it were 
otherwise).   The reason is simple:   the vast majority of the citizens in this 
country (and even more so of the world) hold strong religious views.   These 
religious views are at the core of who these people are.   When a government 
takes no cognizance of the religious practices and beliefs of its citizens in 
adopting its laws, it ignores something fundamental about the nature of its 
citizens and inevitably sets the stage for conflict and the potential 
disruption to civil society. To believers who can't follow their 
consciences informed by their religious views, it matters not whether the law 
that stymies them was motivated by sectarian or secular motives, either way 
they face the burden of a government burden on their conscience.   The fact 
that Madison was writing in a context in which the more immediate problem was 
laws motivated by sectarian prejudices in no way supports the idea that he 
would have been a cheerleader for secular laws that burdened the faithful.

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.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Monday, August 19, 2013 4:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

Richard, The quoted passage below is so dense and complicated that I will not 
attempt to do justice to it here.  I would say just a few things.  First, the 
M&R was written in opposition to a law that would have, in effect, established 
Christianity in Virginia.  This passage needs to be interpreted with that in 
mind.  Second, there is no question but what Madison is saying that humans 
should obey God above all else, and presumably he would say they have a moral 
right to do that even when what they think God commands conflicts with what 
government commands, i.e., they have a right to engage in civil disobedience.  
Does that, however, mean that he thought that government should not punish them 
for their disobedience?  After all, although Madison does not explicitly say it 
here, I'm confident that he believes that good government is ordained by God in 
order to protect our God-given rights to life, liberty, and property.  In other 
words, rulers, as well as private individuals, have a duty to render to God 
certain kinds of behavior.  This means that what the rulers think God requires 
of them will sometimes conflict with what individuals think God requires of 
them.  Does Madison think that when that conflict occurs, the individual or the 
minority will should trump the rulers' or majority's will?  Third, YES, he 
does, BUT ONLY when the government or majority intentionally and explicitly 
takes a position on religious issues.  To avoid a conflict over religion, 
government should simply take no cognizance of religion, and if it will do 
that, then "no man's right" to religious freedom will be abridged by civil 
society.  Fourth, if Madison were arguing here for a right to religion-based 
exemptions from valid, secular laws on the grounds that they, too, abridge a 
man's right to religious freedom, then the only way that a man's right to 
religious freedom could never be abridged by government would be for the 
government to grant ALL religion-based exemptions.  Of course, no one, so far 
as I know, has ever taken such a position, and it is beyond belief that Madison 
was intending to take such a position.  In short, it is difficult, if not 
impossible, to reconcile the idea that Madison was arguing for religion-based 
exemptions with his statement that "Religion is [or should be] wholly exempt 
from its [civil society's] cognizance."

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu<mailto:ew...@richmond.edu>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard Dougherty
Sent: Monday, August 19, 2013 2:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of 

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[West, Ellis]

Richard, The quoted passage below is so dense and complicated that I will not 
attempt to do justice to it here.  I would say just a few things.  First, the 
M&R was written in opposition to a law that would have, in effect, established 
Christianity in Virginia.  This passage needs to be interpreted with that in 
mind.  Second, there is no question but what Madison is saying that humans 
should obey God above all else, and presumably he would say they have a moral 
right to do that even when what they think God commands conflicts with what 
government commands, i.e., they have a right to engage in civil disobedience.  
Does that, however, mean that he thought that government should not punish them 
for their disobedience?  After all, although Madison does not explicitly say it 
here, I'm confident that he believes that good government is ordained by God in 
order to protect our God-given rights to life, liberty, and property.  In other 
words, rulers, as well as private individuals, have a duty to render to God 
certain kinds of behavior.  This means that what the rulers think God requires 
of them will sometimes conflict with what individuals think God requires of 
them.  Does Madison think that when that conflict occurs, the individual or the 
minority will should trump the rulers' or majority's will?  Third, YES, he 
does, BUT ONLY when the government or majority intentionally and explicitly 
takes a position on religious issues.  To avoid a conflict over religion, 
government should simply take no cognizance of religion, and if it will do 
that, then "no man's right" to religious freedom will be abridged by civil 
society.  Fourth, if Madison were arguing here for a right to religion-based 
exemptions from valid, secular laws on the grounds that they, too, abridge a 
man's right to religious freedom, then the only way that a man's right to 
religious freedom could never be abridged by government would be for the 
government to grant ALL religion-based exemptions.  Of course, no one, so far 
as I know, has ever taken such a position, and it is beyond belief that Madison 
was intending to take such a position.  In short, it is difficult, if not 
impossible, to reconcile the idea that Madison was arguing for religion-based 
exemptions with his statement that "Religion is [or should be] wholly exempt 
from its [civil society's] cognizance."

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Richard Dougherty
Sent: Monday, August 19, 2013 2:05 PM
To: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)


I agree with much of what is said here, but don't think it fully captures 
Madison's argument in the M&R.  Here is what he says:
The Religion then of every man must be left to the conviction and conscience of 
every man; and it is the right of every man to exercise it as these may 
dictate. This right is in its nature an unalienable right. It is unalienable, 
because the opinions of men, depending only on the evidence contemplated by 
their own minds cannot follow the dictates of other men: It is unalienable 
also, because what is here a right towards men, is a duty towards the Creator. 
It is the duty of every man to render to the Creator such homage and such only 
as he believes to be acceptable to him. This duty is precedent, both in order 
of time and in degree of obligation, to the claims of Civil Society. Before any 
man can be considerd as a member of Civil Society, he must be considered as a 
subject of the Governour of the Universe: And if a member of Civil Society, do 
it with a saving of his allegiance to the Universal Sovereign. We maintain 
therefore that in matters of Religion, no man's right is abridged by the 
institution of Civil Society and that Religion is wholly exempt from its 
cognizance. True it is, that no other rule exists, by which any question which 
may divide a Society, can be ultimately determined, but the will of the 
majority; but it is also true that the majority may trespass on the rights of 
the minority.
That "religion is wholly exempt from its cognizance" means that the right has 
been violated when the will of the majority transgresses that line. Yes, there 
is no need for the two to conflict, but they might, and he describes that as a 
"trespass" on the religious right, not a trespass on the civil law. Thus the 
duty is "precedent...to the claims of Civil Society."

It's a separate question, it seems to me, when the claim is made that believers 
are exempt from what we call wholly secular laws (many believers, of course, do 
not think there are such things). I wonder if you could clarify 

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Douglas Laycock]

I do not say the Constitution means whatever five Justices say it means. I
do say it prohibits laws that prohibit the free exercise of religion, and
that we would do better to work from that rather explicit language than to
draw inferences from scattered allusions to an issue that they had little
reason to consider, allusions that quite possibly were not even directed to
that issue, and that in any event, were never voted on.

Locke rejected exemptions, but that was a century earlier and a lot of water
had passed under the bridge in the meantime. I don't know whether Williams
rejected exceptions -- I never heard that before -- but he was a century and
half earlier and some have argued, little known to the Founders. Haven't
verified that. Leland did not reject exemptions for conscience; he rejected
exemptions for clergy, which are very different. I have never seen an
unambiguous Jefferson statement rejecting exemptions. 

The only occasions on which the Founders clearly spoke to the exemption
issue is when they dealt with the Quakers. For the rest, both sides try to
read positions on exemptions into quite general language that probably was
not about exemptions at all. We agree that a general right to exemptions was
not a significant issue for them; it is a mistake to read them as talking
about that issue when they do not do so explicitly.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Monday, August 19, 2013 3:26 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge
to ACA Contraceptive Mandate)

Doug, what you write is also "a fair statement, mostly but not entirely
true."  If what you are saying is that a constitutional provision should be
interpreted so flexibly that it can be used to deal with whatever a majority
of the Supreme Court at any given time thinks is a problem, then I would
strongly disagree and would hope that most, if not all other readers of this
blog, would also disagree.  Either the Constitution has some unchanging,
objective meaning and we have the rule of law, or, as many are now proposing
(because of gridlock), we just ignore the Constitution and let ___
call the shots.  On the other hand, I agree that the idea of a right to
religion-based exemptions MIGHT be close enough to the original meaning of
the religion clauses as to justify its being incorporated into those
clauses.  Whether it is close enough depends on the "general principle"
encased in those clauses.  Based on everything I have read from 18th century
America, that principle !
 is something like this: government should not legislate or take a position
on religious issues OR should not pass laws of the sort characteristic of
establishments of religion OR should treat all religions, beliefs, practices
equally--three different ways of saying the same thing.  Not surprisingly,
therefore, at the time of the ratification, both Federalists and
Anti-federalists agreed that the national government should not have
jurisdiction over religion, but disagreed over whether an amendment was
needed to make that clear.  Ultimately they agreed to add an amendment,
which forbids "laws" of a certain sort and says nothing about giving
exemptions from laws that it is authorized to pass.  Is the idea of a right
to religion-based exemptions from valid, secular, generally applicable laws
close to or even consistent with this "general principle," as I have
explained it?  Put simply, is it consistent with the principle of religious
equality?  If the religion clauses prohibit!
  discrimination on the basis of religion, then at a minimum sh!
 ouldn't
exemptions for reasons of "conscience" be given to non-religious consciences
as well religious consciences?  (Have you not yourself come close to taking
that position?)

One other brief point, I over-stated it when I said that early Americans did
not explicitly address the issue of religion-based exemptions.  As you know,
Roger Williams, John Locke, TJ, John Leland, among others, did address it,
and rejected the idea that persons had a right to such exemptions.
Madison's position (which is where this dialogue began) is not as clear as
theirs' was, but in his proposed draft of the religious liberty provision in
the Virginia Declaration of Rights he said that "all men are equally
entitled to the full and free exercise of it [religion] according to the
dictates of Conscience; and therefore that no man or class of men ought, on
account of religion to be invested with peculiar emoluments or privileges."
Finally, in the M&R he wrote that the general assessment bill "violates
equali

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[West, Ellis]

Doug, what you write is also "a fair statement, mostly but not entirely true."  
If what you are saying is that a constitutional provision should be interpreted 
so flexibly that it can be used to deal with whatever a majority of the Supreme 
Court at any given time thinks is a problem, then I would strongly disagree and 
would hope that most, if not all other readers of this blog, would also 
disagree.  Either the Constitution has some unchanging, objective meaning and 
we have the rule of law, or, as many are now proposing (because of gridlock), 
we just ignore the Constitution and let ___ call the shots.  On the 
other hand, I agree that the idea of a right to religion-based exemptions MIGHT 
be close enough to the original meaning of the religion clauses as to justify 
its being incorporated into those clauses.  Whether it is close enough depends 
on the "general principle" encased in those clauses.  Based on everything I 
have read from 18th century America, that principle !
 is something like this: government should not legislate or take a position on 
religious issues OR should not pass laws of the sort characteristic of 
establishments of religion OR should treat all religions, beliefs, practices 
equally--three different ways of saying the same thing.  Not surprisingly, 
therefore, at the time of the ratification, both Federalists and 
Anti-federalists agreed that the national government should not have 
jurisdiction over religion, but disagreed over whether an amendment was needed 
to make that clear.  Ultimately they agreed to add an amendment, which forbids 
"laws" of a certain sort and says nothing about giving exemptions from laws 
that it is authorized to pass.  Is the idea of a right to religion-based 
exemptions from valid, secular, generally applicable laws close to or even 
consistent with this "general principle," as I have explained it?  Put simply, 
is it consistent with the principle of religious equality?  If the religion 
clauses prohibit!
  discrimination on the basis of religion, then at a minimum sh!
 ouldn't 
exemptions for reasons of "conscience" be given to non-religious consciences as 
well religious consciences?  (Have you not yourself come close to taking that 
position?)

One other brief point, I over-stated it when I said that early Americans did 
not explicitly address the issue of religion-based exemptions.  As you know, 
Roger Williams, John Locke, TJ, John Leland, among others, did address it, and 
rejected the idea that persons had a right to such exemptions.  Madison's 
position (which is where this dialogue began) is not as clear as theirs' was, 
but in his proposed draft of the religious liberty provision in the Virginia 
Declaration of Rights he said that "all men are equally entitled to the full 
and free exercise of it [religion] according to the dictates of Conscience; and 
therefore that no man or class of men ought, on account of religion to be 
invested with peculiar emoluments or privileges."  Finally, in the M&R he wrote 
that the general assessment bill "violates equality by subjecting some to 
peculiar burdens, so it violates the same principle by granting to others 
peculiar exemptions." 

Ellis 

Ellis M. West
Emeritus Professor of Political Science 
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, August 19, 2013 10:50 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

>From Ellis's original post:  "The issue of religion-based exemptions from
valid laws was simply not on their minds, and they did not address it
explicitly." 

That is a fair statement, mostly but not entirely true. Not entirely because
they repeatedly addressed the issue with respect to Quakers. And of course
the two sides of this debate also disagree about the significance of those
exemptions. But the basic point is sound: when the country was
overwhelmingly Protestant, and when there was a Protestant consensus on
moral issues, laws rarely or never interfered with the religious practices
of Protestants. The exceptional cases were dealt with as exceptional. The
Founders had never experienced, and probably never imagined, a situation in
which large, long established, and once respected religious groups were
fundamentally at odds with the government on important moral issues.
Widespread conflict over the Fugitive Slave Law was still far in the future.

It is one thing to say the Founders didn't think much about the exemption
issue. It is a different and inconsistent thing to say they formed an
intention or public understanding that the Free Exercise Clause did not
include

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Richard Dougherty]

I agree with much of what is said here, but don't think it fully captures
Madison's argument in the M&R.  Here is what he says:

The Religion then of every man must be left to the conviction and
conscience of every man; and it is the right of every man to exercise it as
these may dictate. This right is in its nature an unalienable right. It is
unalienable, because the opinions of men, depending only on the evidence
contemplated by their own minds cannot follow the dictates of other men: It
is unalienable also, because what is here a right towards men, is a duty
towards the Creator. It is the duty of every man to render to the Creator
such homage and such only as he believes to be acceptable to him. This duty
is precedent, both in order of time and in degree of obligation, to the
claims of Civil Society. Before any man can be considerd as a member of
Civil Society, he must be considered as a subject of the Governour of the
Universe: And if a member of Civil Society, do it with a saving of his
allegiance to the Universal Sovereign. We maintain therefore that in
matters of Religion, no man's right is abridged by the institution of Civil
Society and that Religion is wholly exempt from its cognizance. True it is,
that no other rule exists, by which any question which may divide a
Society, can be ultimately determined, but the will of the majority; but it
is also true that the majority may trespass on the rights of the minority.

That "religion is wholly exempt from its cognizance" means that the right
has been violated when the will of the majority transgresses that line.
Yes, there is no need for the two to conflict, but they might, and he
describes that as a "trespass" on the religious right, not a trespass on
the civil law. Thus the duty is "precedent...to the claims of Civil
Society."

It's a separate question, it seems to me, when the claim is made that
believers are exempt from what we call wholly secular laws (many believers,
of course, do not think there are such things). I wonder if you could
clarify for me what you mean by believers objecting to laws "for reasons
peculiar to their religion"; it's not a rhetorical question, I just don't
know. Do you mean for reasons peculiar *only* to their religion, or because
their religion has some extreme views about civil society, or something
else?

Best,
Richard Dougherty

On Sun, Aug 18, 2013 at 10:03 PM, West, Ellis  wrote:
> Two responses: 1. The passage from Madison's M&R quoted below does not
support the proposition that he believed that religious freedom entails a
right to religion-based exemptions from valid, civil laws.  What Madison is
saying (and what most other early American advocates of religious freedom
said) is that there is no need for government and religion to conflict with
one another ("in matters of religion no man's right is abridged by the
institution of civil society") provided government does not claim
jurisdiction over and legislate intentionally and directly on religious
matters (provided "religion is wholly exempt from its cognizance").  In
contrast to JM's position, the proposition that persons have a right to
religion-based exemptions is based on the assumption that conflict between
government and religion is unavoidable.  In other words, if one accepts
Brad Pardee's understanding of religious liberty (see below) as not forcing
persons to choose between obeying their God and obeying civil laws, and
those laws include purely secular laws as well as laws dealing with
religion, then conflict is inevitable--not because the government intends
or creates it, but because religious individuals and groups, for reasons
peculiar to their religion, object to obeying the laws.  I could also give
you other evidence from JM's writings to support my argument, but will not
do so here, unless I am asked for it.
> 2. That religious freedom meant freedom from laws dealing directly and
primarily with religion, and did not entail a right to religion-based
exemptions, was not only the original understanding of religious freedom,
but the understanding of the Supreme Court (and most of the people?) until
1963 (Sherbert v. Verner), and even then it was rejected only in theory and
not in reality, and thus Oregon v. Smith (1990) decided to "call a spade a
spade" and restored the original and historical understanding of religious
freedom.
>
> Ellis West
___
To post, send message to Religionlaw@lists.ucla.edu
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RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Kahn, Robert A.]

Hi Mitchell,

I thought you might find this interesting.

Take care,
Rob

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Sunday, August 18, 2013 8:50 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

As I have said repeatedly, I strongly disagree with the notion that Smith 
created a new regime.  It was an accurate statement of the existing case law.  
RFRA is a new regime parading as a "restoration."Applying Sherbert or the 
other unemployment compensation case to any other scenario is inconsistent w 
the prior case law.  So we have the Sherbert/Yoder standard being bandied about 
for facts that never would have received it.  That is why we have these strands 
of discussion that are incoherent at times.

Historical limits on free exercise provide a robust limitation to the current 
push for religious "liberty", which is unprecedented in history.   My view is 
heavily influenced by Levy, who brilliantly showed how the Religion Clauses 
evolved over time to a stronger and stronger separation principle.  Therefore, 
wherever we started, it is not that the doctrine has naturally evolved to 
religious narcissism, but rather to concept of separation.   So original 
intent, read in light of the working out of the Religion Clauses, works against 
the RFRA/religious-believers-should win-all-(or most)-arguments approach.   
That is why RFRA could only happen legislatively ---  and not through the 
courts.   And why, in my view, it is unconstitutional and illegitimate.

I assume, though, that Mark's point was directed at the notion that substantive 
due process is a "new right."   Speaking as a woman and a supporter of the 
Federalists' perspective at the framing, I don't think these rights are "new" 
but rather rights over our bodies that appropriately are recognized today.   
The Federalists were correct that the problem w a Bill of Rights is that it 
would be assumed that all rights were therefore enumerated, but it was humanly 
impossible to do so.   Their most important insight was that the Framers were 
fallible humans who could not possibly enumerate all rights. Or fully 
comprehend how this governing system would work out over time and how rights 
would need to be defined over time. Their bedrock belief that they could see 
only through a glass darkly is critical to understanding how the status and 
role of women could work itself out over time.   The bedrock principles were 
there even if the rights holders (slaves and women) were not apparent!
  at the time.

  This is at base a Hegelian approach toward the working out of rights, but one 
that in my view takes the best account of the many factors at play.

I apologize for going off topic, but thought I might as well explain myself.  

Marci


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 18, 2013, at 6:54 PM, "Scarberry, Mark"  
wrote:

> In response to Marci, who has expressed strong support on this list for 
> abortion rights: 
> 
> It is very difficult to square her commitment to "historical limits" on 
> individual rights with any robust version of abortion rights, as against 
> state laws. 
> 
> Historical limits provide much less of a barrier to (or more likely a boost 
> to) robust protection of religious freedom (such as the protection given by 
> federal and state RFRAs, and to some degree by the Constitution, even under 
> the highly-restrictive post-Smith regime).
> 
> Mark
> 
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci 
> Hamilton
> Sent: Sunday, August 18, 2013 3:03 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Harmony and the freedom of religion (RE: New Twist On 
> Challenge to ACA Contraceptive Mandate)
> 
> Thanks, Ellis, for your valuable post.  Let's also add that the framing 
> generation understood and articulated a distinction between liberty and 
> licentiousness, as I have written before.   And set a boundary on religious 
> liberty of safety and the public good.  Indeed, pastors preached abiding by 
> the law
> from the pulpit.
> 
> The principle was "ordered liberty" from the beginning, not what I have come 
> to think of as narcissistic liberty, which is that liberty that is supposed 
> to be judged only from the inside of the believer's hea

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Douglas Laycock]

>From Ellis's original post:  "The issue of religion-based exemptions from
valid laws was simply not on their minds, and they did not address it
explicitly." 

That is a fair statement, mostly but not entirely true. Not entirely because
they repeatedly addressed the issue with respect to Quakers. And of course
the two sides of this debate also disagree about the significance of those
exemptions. But the basic point is sound: when the country was
overwhelmingly Protestant, and when there was a Protestant consensus on
moral issues, laws rarely or never interfered with the religious practices
of Protestants. The exceptional cases were dealt with as exceptional. The
Founders had never experienced, and probably never imagined, a situation in
which large, long established, and once respected religious groups were
fundamentally at odds with the government on important moral issues.
Widespread conflict over the Fugitive Slave Law was still far in the future.

It is one thing to say the Founders didn't think much about the exemption
issue. It is a different and inconsistent thing to say they formed an
intention or public understanding that the Free Exercise Clause did not
include such exemptions and could never include such exemptions even if
religious pluralism and the reach of government both expanded dramatically. 

Alternatively, the premise might be that if they did not think about a
problem because it was not a significant practical problem in their time,
then the Constitution can never be applied to that problem no matter how big
a problem it becomes later. There is an irrebuttable presumption of
nonapplicability that requires no considered intention or understanding.

Of course we do not apply such a presumption to other new developments. No
one claims that the First Amendment does not apply to movies, television, or
the Internet, or that the Fourth Amendment does not apply to electronic
searches. "Freedom of speech, or of the press," and "unreasonable searches
and seizures," do not apply to those new issues any more obviously or
specifically than "prohibit the free exercise of religion" applies to laws
that penalize people for exercising their religion.





Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

-Original Message-
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of West, Ellis
Sent: Sunday, August 18, 2013 11:04 PM
To: Law & Religion issues for Law Academics
Subject: RE: Harmony and the freedom of religion (RE: New Twist On Challenge
to ACA Contraceptive Mandate)

Two responses: 1. The passage from Madison's M&R quoted below does not
support the proposition that he believed that religious freedom entails a
right to religion-based exemptions from valid, civil laws.  What Madison is
saying (and what most other early American advocates of religious freedom
said) is that there is no need for government and religion to conflict with
one another ("in matters of religion no man's right is abridged by the
institution of civil society") provided government does not claim
jurisdiction over and legislate intentionally and directly on religious
matters (provided "religion is wholly exempt from its cognizance").  In
contrast to JM's position, the proposition that persons have a right to
religion-based exemptions is based on the assumption that conflict between
government and religion is unavoidable.  In other words, if one accepts Brad
Pardee's understanding of religious liberty (see below) as not forcing
persons to choose between obeying their God and obeying civil laws, and
those laws include purely secular laws as well as laws dealing with
religion, then conflict is inevitable--not because the government intends or
creates it, but because religious individuals and groups, for reasons
peculiar to their religion, object to obeying the laws.  I could also give
you other evidence from JM's writings to support my argument, but will not
do so here, unless I am asked for it.
2. That religious freedom meant freedom from laws dealing directly and
primarily with religion, and did not entail a right to religion-based
exemptions, was not only the original understanding of religious freedom,
but the understanding of the Supreme Court (and most of the people?) until
1963 (Sherbert v. Verner), and even then it was rejected only in theory and
not in reality, and thus Oregon v. Smith (1990) decided to "call a spade a
spade" and restored the original and historical understanding of religious
freedom.  

Ellis West

From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Richard Dougherty
[dou...@udallas.edu]
Sent: Sunday, August 18, 2013 6:20 PM
To: Law & Religion is

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[West, Ellis]

Two responses: 1. The passage from Madison's M&R quoted below does not support 
the proposition that he believed that religious freedom entails a right to 
religion-based exemptions from valid, civil laws.  What Madison is saying (and 
what most other early American advocates of religious freedom said) is that 
there is no need for government and religion to conflict with one another ("in 
matters of religion no man's right is abridged by the institution of civil 
society") provided government does not claim jurisdiction over and legislate 
intentionally and directly on religious matters (provided "religion is wholly 
exempt from its cognizance").  In contrast to JM's position, the proposition 
that persons have a right to religion-based exemptions is based on the 
assumption that conflict between government and religion is unavoidable.  In 
other words, if one accepts Brad Pardee's understanding of religious liberty 
(see below) as not forcing persons to choose between obeying their God and 
obeying civil laws, and those laws include purely secular laws as well as laws 
dealing with religion, then conflict is inevitable--not because the government 
intends or creates it, but because religious individuals and groups, for 
reasons peculiar to their religion, object to obeying the laws.  I could also 
give you other evidence from JM's writings to support my argument, but will not 
do so here, unless I am asked for it.
2. That religious freedom meant freedom from laws dealing directly and 
primarily with religion, and did not entail a right to religion-based 
exemptions, was not only the original understanding of religious freedom, but 
the understanding of the Supreme Court (and most of the people?) until 1963 
(Sherbert v. Verner), and even then it was rejected only in theory and not in 
reality, and thus Oregon v. Smith (1990) decided to "call a spade a spade" and 
restored the original and historical understanding of religious freedom.  

Ellis West

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Richard Dougherty [dou...@udallas.edu]
Sent: Sunday, August 18, 2013 6:20 PM
To: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge
to ACA Contraceptive Mandate)

I would think that this would be a matter of significance only for
those who afford some degree of significance to a jurisprudence of
original intent.

But if one does take such matters seriously, I would suggest that it
is hard, indeed impossible, to read James Madison's Memorial and
Remonstrance as not protecting the free exercise of religion, and not
simply against the interference of what one might consider
liberty-denying religion.  Just one passage, from the first paragraph:
"We maintain therefore that in matters of Religion, no man's right is
abridged by the institution of Civil Society and that Religion is
wholly exempt from its cognizance."

Richard Dougherty

On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis  wrote:
>
> I fear that many of you will think I am pompous, if not arrogant, in saying 
> what follows, but I feel compelled to respond to Brad Pardee's post.  For 
> years now, I have been reading all the posts on this blog, most of which have 
> dealt with the issue of when, on the basis of religious liberty, persons have 
> a right to be exempt from having to obey valid secular that persons generally 
> have to obey.  Recently, I find myself just shaking my head, because the 
> debate goes on and on, and will continue to do so, because there is simply no 
> clear answer to the question.  The sad thing about the debate is that as it 
> has been structured, it is so unnecessary.  Of course, if legislatures want 
> to exempt certain persons from certain laws on the basis of certain criteria, 
> that is their prerogative.  The debate on this blog, however, has been based 
> on the assumption that religious freedom, at least under certain 
> circumstances, gives persons a right to be exempt from obeying valid civil 
> laws.  More specifically, too many entries assume, along with Brad, that "the 
> essence of religious freedom is that a person is not forced to choose between 
> obeying their God and obeying their government" and "[t]hat's certainly at 
> the heart of free exercise."
>
> If, however, Brad is referring to the free exercise of religion guaranteed in 
> the First Amendment, then his understanding of religious freedom is way off 
> base.  Based on a thorough review of the historical evidence, I am finishing 
> a book on the original meaning of the free exercise clause, and I have yet to 
> find any early American advocate of religious liberty, except for some 
> Quakers, who understood it as mean

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Richard Dougherty]

Actually I did reread the entirety, none of which contradicts the
first paragraph. Certainly Madison was concerned about such abuse,
though he of course was an unusual bird among the Founders (as was
Jefferson).

More importantly, the issue doesn't have anything to do with abusive
clergy. The question on the table is free exercise and the law; the
passage I cited from the Memorial is about as clear as anything one
could possibly find, and refutes the claim that no one at the founding
was concerned about the abuse of religious freedom by the law. Much
more can be found in the Founders' Constitution selections; in
particular, the view that non-establishment (at the national level)
was routinely seen as a way of ensuring the free exercise of religion
at the state level (even if only sometimes the Protestant religion).

But, again, I don't see how this would matter for anyone not an originalist.

Richard Dougherty

On Sun, Aug 18, 2013 at 8:19 PM, Marci Hamilton  wrote:
> Reread the entirety of the memorial.
> Madison was very concerned about the abusive power of the clergy.
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 18, 2013, at 6:20 PM, Richard Dougherty  wrote:
>
>> I would think that this would be a matter of significance only for
>> those who afford some degree of significance to a jurisprudence of
>> original intent.
>>
>> But if one does take such matters seriously, I would suggest that it
>> is hard, indeed impossible, to read James Madison's Memorial and
>> Remonstrance as not protecting the free exercise of religion, and not
>> simply against the interference of what one might consider
>> liberty-denying religion.  Just one passage, from the first paragraph:
>> "We maintain therefore that in matters of Religion, no man's right is
>> abridged by the institution of Civil Society and that Religion is
>> wholly exempt from its cognizance."
>>
>> Richard Dougherty
>>
>> On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis  wrote:
>>>
>>> I fear that many of you will think I am pompous, if not arrogant, in saying 
>>> what follows, but I feel compelled to respond to Brad Pardee's post.  For 
>>> years now, I have been reading all the posts on this blog, most of which 
>>> have dealt with the issue of when, on the basis of religious liberty, 
>>> persons have a right to be exempt from having to obey valid secular that 
>>> persons generally have to obey.  Recently, I find myself just shaking my 
>>> head, because the debate goes on and on, and will continue to do so, 
>>> because there is simply no clear answer to the question.  The sad thing 
>>> about the debate is that as it has been structured, it is so unnecessary.  
>>> Of course, if legislatures want to exempt certain persons from certain laws 
>>> on the basis of certain criteria, that is their prerogative.  The debate on 
>>> this blog, however, has been based on the assumption that religious 
>>> freedom, at least under certain circumstances, gives persons a right to be 
>>> exempt from obeying valid civil law!
 s.  More specifically, too many entries assume, along with Brad, that "the 
essence of religious freedom is that a person is not forced to choose between 
obeying their God and obeying their government" and "[t]hat's certainly at the 
heart of free exercise."
>>>
>>> If, however, Brad is referring to the free exercise of religion guaranteed 
>>> in the First Amendment, then his understanding of religious freedom is way 
>>> off base.  Based on a thorough review of the historical evidence, I am 
>>> finishing a book on the original meaning of the free exercise clause, and I 
>>> have yet to find any early American advocate of religious liberty, except 
>>> for some Quakers, who understood it as meaning that persons could not be 
>>> forced to choose between obeying their God and obeying their government.  
>>> (There may be such persons, but I have not found them.)  The issue of 
>>> religion-based exemptions from valid laws was simply not on their minds, 
>>> and they did not address it explicitly.  Rather the all-consuming issue was 
>>> that of establishments of religion, and freedom of religion meant freedom 
>>> from such establishments and all laws associated with them, i.e., freedom 
>>> from laws whose primary purpose was to favor one religion, religious belief 
>>> or practice, over anothe!
 r or to discriminate for and against persons because of their religion.  
Stated differently, the no establishment and free exercise clauses were simply 
two different ways of saying the same thing.  To the extent that early 
Americans implicitly addressed the issue, they emphasized that religion could 
not be used as an excuse for obeying valid civil laws.  Only some Quakers would 
have agreed with Brad's understanding of religious freedom, but as I showed 
years ago in an article in the Journal of Law and Religion, when they attempted 
to get Pennsylvania 

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Marci Hamilton]

As I have said repeatedly, I strongly disagree with the notion that Smith 
created a new regime.  It was an accurate statement of the existing case law.  
RFRA is a new regime parading as a "restoration."Applying Sherbert or the 
other unemployment compensation case to any other scenario is inconsistent w 
the prior case law.  So we have the Sherbert/Yoder standard being bandied about 
for facts that never would have received it.  That is why we have these strands 
of discussion that are incoherent at times.

Historical limits on free exercise provide a robust limitation to the current 
push for religious "liberty", which is unprecedented in history.   My view is 
heavily influenced by Levy, who brilliantly showed how the Religion Clauses 
evolved over time to a stronger and stronger separation principle.  Therefore, 
wherever we started, it is not that the doctrine has naturally evolved to 
religious narcissism, but rather to concept of separation.   So original 
intent, read in light of the working out of the Religion Clauses, works against 
the RFRA/religious-believers-should win-all-(or most)-arguments approach.   
That is why RFRA could only happen legislatively ---  and not through the 
courts.   And why, in my view, it is unconstitutional and illegitimate.

I assume, though, that Mark's point was directed at the notion that substantive 
due process is a "new right."   Speaking as a woman and a supporter of the 
Federalists' perspective at the framing, I don't think these rights are "new" 
but rather rights over our bodies that appropriately are recognized today.   
The Federalists were correct that the problem w a Bill of Rights is that it 
would be assumed that all rights were therefore enumerated, but it was humanly 
impossible to do so.   Their most important insight was that the Framers were 
fallible humans who could not possibly enumerate all rights. Or fully 
comprehend how this governing system would work out over time and how rights 
would need to be defined over time. Their bedrock belief that they could see 
only through a glass darkly is critical to understanding how the status and 
role of women could work itself out over time.   The bedrock principles were 
there even if the rights holders (slaves and women) were not apparent!
  at the time.

  This is at base a Hegelian approach toward the working out of rights, but one 
that in my view takes the best account of the many factors at play.

I apologize for going off topic, but thought I might as well explain myself.  

Marci


Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 18, 2013, at 6:54 PM, "Scarberry, Mark"  
wrote:

> In response to Marci, who has expressed strong support on this list for 
> abortion rights: 
> 
> It is very difficult to square her commitment to "historical limits" on 
> individual rights with any robust version of abortion rights, as against 
> state laws. 
> 
> Historical limits provide much less of a barrier to (or more likely a boost 
> to) robust protection of religious freedom (such as the protection given by 
> federal and state RFRAs, and to some degree by the Constitution, even under 
> the highly-restrictive post-Smith regime).
> 
> Mark
> 
> Mark S. Scarberry
> Professor of Law
> Pepperdine Univ. School of Law
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
> Sent: Sunday, August 18, 2013 3:03 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge 
> to ACA Contraceptive Mandate)
> 
> Thanks, Ellis, for your valuable post.  Let's also add that the framing 
> generation understood and articulated a distinction between liberty and 
> licentiousness, as I have written before.   And set a boundary on religious 
> liberty of safety and the public good.  Indeed, pastors preached abiding by 
> the law
> from the pulpit.
> 
> The principle was "ordered liberty" from the beginning, not what I have come 
> to think of as narcissistic liberty, which is that liberty that is supposed 
> to be judged only from the inside of the believer's head and world view and 
> fails to take truly seriously the culture's, third-party, and historical 
> limits.
> 
> Marci
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://list

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Marci Hamilton]

Reread the entirety of the memorial.
Madison was very concerned about the abusive power of the clergy.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 18, 2013, at 6:20 PM, Richard Dougherty  wrote:

> I would think that this would be a matter of significance only for
> those who afford some degree of significance to a jurisprudence of
> original intent.
> 
> But if one does take such matters seriously, I would suggest that it
> is hard, indeed impossible, to read James Madison's Memorial and
> Remonstrance as not protecting the free exercise of religion, and not
> simply against the interference of what one might consider
> liberty-denying religion.  Just one passage, from the first paragraph:
> "We maintain therefore that in matters of Religion, no man's right is
> abridged by the institution of Civil Society and that Religion is
> wholly exempt from its cognizance."
> 
> Richard Dougherty
> 
> On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis  wrote:
>> 
>> I fear that many of you will think I am pompous, if not arrogant, in saying 
>> what follows, but I feel compelled to respond to Brad Pardee's post.  For 
>> years now, I have been reading all the posts on this blog, most of which 
>> have dealt with the issue of when, on the basis of religious liberty, 
>> persons have a right to be exempt from having to obey valid secular that 
>> persons generally have to obey.  Recently, I find myself just shaking my 
>> head, because the debate goes on and on, and will continue to do so, because 
>> there is simply no clear answer to the question.  The sad thing about the 
>> debate is that as it has been structured, it is so unnecessary.  Of course, 
>> if legislatures want to exempt certain persons from certain laws on the 
>> basis of certain criteria, that is their prerogative.  The debate on this 
>> blog, however, has been based on the assumption that religious freedom, at 
>> least under certain circumstances, gives persons a right to be exempt from 
>> obeying valid civil laws.  More specifically, too many entries assume, along 
>> with Brad, that "the essence of religious freedom is that a person is not 
>> forced to choose between obeying their God and obeying their government" and 
>> "[t]hat's certainly at the heart of free exercise."
>> 
>> If, however, Brad is referring to the free exercise of religion guaranteed 
>> in the First Amendment, then his understanding of religious freedom is way 
>> off base.  Based on a thorough review of the historical evidence, I am 
>> finishing a book on the original meaning of the free exercise clause, and I 
>> have yet to find any early American advocate of religious liberty, except 
>> for some Quakers, who understood it as meaning that persons could not be 
>> forced to choose between obeying their God and obeying their government.  
>> (There may be such persons, but I have not found them.)  The issue of 
>> religion-based exemptions from valid laws was simply not on their minds, and 
>> they did not address it explicitly.  Rather the all-consuming issue was that 
>> of establishments of religion, and freedom of religion meant freedom from 
>> such establishments and all laws associated with them, i.e., freedom from 
>> laws whose primary purpose was to favor one religion, religious belief or 
>> practice, over another or to discriminate for and against persons because of 
>> their religion.  Stated differently, the no establishment and free exercise 
>> clauses were simply two different ways of saying the same thing.  To the 
>> extent that early Americans implicitly addressed the issue, they emphasized 
>> that religion could not be used as an excuse for obeying valid civil laws.  
>> Only some Quakers would have agreed with Brad's understanding of religious 
>> freedom, but as I showed years ago in an article in the Journal of Law and 
>> Religion, when they attempted to get Pennsylvania to add a provision to its 
>> constitution that would reflect their understanding, it was rejected.  
>> Finally, contrary to what Brad says, the philosophy behind religious freedom 
>> is not the same as the philosophy behind conscientious objection.  The 
>> former pertains to what the government should not do, whereas the latter 
>> pertains to whether an individual should follow his conscience regardless of 
>> what others, including the government, may do to him or her.
>> 
>> Ellis M. West
>> Emeritus Professor of Political Science
>> University of Richmond, VA 23173
>> 804-289-8536
>> 

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Scarberry, Mark]

In response to Marci, who has expressed strong support on this list for 
abortion rights: 

It is very difficult to square her commitment to "historical limits" on 
individual rights with any robust version of abortion rights, as against state 
laws. 

Historical limits provide much less of a barrier to (or more likely a boost to) 
robust protection of religious freedom (such as the protection given by federal 
and state RFRAs, and to some degree by the Constitution, even under the 
highly-restrictive post-Smith regime).

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Sunday, August 18, 2013 3:03 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

Thanks, Ellis, for your valuable post.  Let's also add that the framing 
generation understood and articulated a distinction between liberty and 
licentiousness, as I have written before.   And set a boundary on religious 
liberty of safety and the public good.  Indeed, pastors preached abiding by the 
law
from the pulpit.

 The principle was "ordered liberty" from the beginning, not what I have come 
to think of as narcissistic liberty, which is that liberty that is supposed to 
be judged only from the inside of the believer's head and world view and fails 
to take truly seriously the culture's, third-party, and historical limits.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 
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RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Volokh, Eugene]

Oh, I agree that Lee and Bowen remain good precedents under 
RFRA.  I just don’t agree that “Lee and Bowen v Roy stand for the proposition 
that if one chooses to employ or to take advantage of govt benefits, the Free 
Exercise Clause does not provide a way out of the obligations that come w the 
voluntary decision made by the believer.”  For starters, 
Sherbert/Thomas/Frazee/Hobbie stand for the proposition that sometimes the Free 
Exercise Clause does provide such a way out (though I’m not saying it always 
does).  Lee, as I read it, rests on the compelling interest in uniformity of 
tax administration, and is limited to that.  And in Bowen, the majority of the 
Justices took the view that, if the government demanded that the claimants 
actually provide their daughter’s social security number themselves, the 
claimants would indeed have an exemption from that requirement.  The claimants 
lost (correctly, in my view) only because they also were objecting to the 
government even keeping a social security number for their daughter, and that 
was found not to be a substantial burden.

Eugene


From: religionlaw-bounces+volokh=law.ucla@lists.ucla.edu 
[mailto:religionlaw-bounces+volokh=law.ucla@lists.ucla.edu] On Behalf Of 
Marci Hamilton
Sent: Sunday, August 18, 2013 3:05 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Harmony and the freedom of religion (RE: New Twist On Challenge to 
ACA Contraceptive Mandate)

But if you take the "restoration" part of RFRA seriously, Lee and Bowen are the 
lead cases in these scenarios.  I don't think you can have it both ways that 
RFRA restores the prior case law and it requires radical new ways of reasoning 
w respect to large federal or state administrative programs.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 16, 2013, at 4:21 PM, "Volokh, Eugene" 
mailto:vol...@law.ucla.edu>> wrote:

I agree with Ellis that the Free Exercise Clause shouldn't 
generally be read as mandating religious exemptions.  But the debate these days 
(at least on this blog) is usually not about the Free Exercise Clause but about 
RFRAs, which do involve legislatively created exemptions (albeit ones created 
in bulk rather than on a statute-by-state basis).  The ACA debate is mostly 
about the federal RFRA.  The Missouri legislator would, I assume, be claiming 
the protection of the Missouri RFRA.  And those statutes do seem to take the 
view that "the essence of religious freedom is that a person is not forced to 
choose between obeying their God and obeying their government" and "[t]hat's 
certainly at the heart of free exercise” as secured by the statutes, if not by 
the federal Free Exercise Clause.



Eugene
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Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Richard Dougherty]

I would think that this would be a matter of significance only for
those who afford some degree of significance to a jurisprudence of
original intent.

But if one does take such matters seriously, I would suggest that it
is hard, indeed impossible, to read James Madison's Memorial and
Remonstrance as not protecting the free exercise of religion, and not
simply against the interference of what one might consider
liberty-denying religion.  Just one passage, from the first paragraph:
"We maintain therefore that in matters of Religion, no man's right is
abridged by the institution of Civil Society and that Religion is
wholly exempt from its cognizance."

Richard Dougherty

On Fri, Aug 16, 2013 at 2:54 PM, West, Ellis  wrote:
>
> I fear that many of you will think I am pompous, if not arrogant, in saying 
> what follows, but I feel compelled to respond to Brad Pardee's post.  For 
> years now, I have been reading all the posts on this blog, most of which have 
> dealt with the issue of when, on the basis of religious liberty, persons have 
> a right to be exempt from having to obey valid secular that persons generally 
> have to obey.  Recently, I find myself just shaking my head, because the 
> debate goes on and on, and will continue to do so, because there is simply no 
> clear answer to the question.  The sad thing about the debate is that as it 
> has been structured, it is so unnecessary.  Of course, if legislatures want 
> to exempt certain persons from certain laws on the basis of certain criteria, 
> that is their prerogative.  The debate on this blog, however, has been based 
> on the assumption that religious freedom, at least under certain 
> circumstances, gives persons a right to be exempt from obeying valid civil 
> laws.  More specifically, too many entries assume, along with Brad, that "the 
> essence of religious freedom is that a person is not forced to choose between 
> obeying their God and obeying their government" and "[t]hat's certainly at 
> the heart of free exercise."
>
> If, however, Brad is referring to the free exercise of religion guaranteed in 
> the First Amendment, then his understanding of religious freedom is way off 
> base.  Based on a thorough review of the historical evidence, I am finishing 
> a book on the original meaning of the free exercise clause, and I have yet to 
> find any early American advocate of religious liberty, except for some 
> Quakers, who understood it as meaning that persons could not be forced to 
> choose between obeying their God and obeying their government.  (There may be 
> such persons, but I have not found them.)  The issue of religion-based 
> exemptions from valid laws was simply not on their minds, and they did not 
> address it explicitly.  Rather the all-consuming issue was that of 
> establishments of religion, and freedom of religion meant freedom from such 
> establishments and all laws associated with them, i.e., freedom from laws 
> whose primary purpose was to favor one religion, religious belief or 
> practice, over another or to discriminate for and against persons because of 
> their religion.  Stated differently, the no establishment and free exercise 
> clauses were simply two different ways of saying the same thing.  To the 
> extent that early Americans implicitly addressed the issue, they emphasized 
> that religion could not be used as an excuse for obeying valid civil laws.  
> Only some Quakers would have agreed with Brad's understanding of religious 
> freedom, but as I showed years ago in an article in the Journal of Law and 
> Religion, when they attempted to get Pennsylvania to add a provision to its 
> constitution that would reflect their understanding, it was rejected.  
> Finally, contrary to what Brad says, the philosophy behind religious freedom 
> is not the same as the philosophy behind conscientious objection.  The former 
> pertains to what the government should not do, whereas the latter pertains to 
> whether an individual should follow his conscience regardless of what others, 
> including the government, may do to him or her.
>
> Ellis M. West
> Emeritus Professor of Political Science
> University of Richmond, VA 23173
> 804-289-8536
> ew...@richmond.edu
>
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
> Sent: Friday, August 16, 2013 2:36 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to 
> ACA Contraceptive Mandate)
>
> I'm not certain that this is a correct understanding of the purpose of 
> freedom of religion.  It's always been my understanding that the essence

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Marci Hamilton]

But if you take the "restoration" part of RFRA seriously, Lee and Bowen are the 
lead cases in these scenarios.  I don't think you can have it both ways that 
RFRA restores the prior case law and it requires radical new ways of reasoning 
w respect to large federal or state administrative programs.

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 16, 2013, at 4:21 PM, "Volokh, Eugene"  wrote:

> I agree with Ellis that the Free Exercise Clause shouldn't 
> generally be read as mandating religious exemptions.  But the debate these 
> days (at least on this blog) is usually not about the Free Exercise Clause 
> but about RFRAs, which do involve legislatively created exemptions (albeit 
> ones created in bulk rather than on a statute-by-state basis).  The ACA 
> debate is mostly about the federal RFRA.  The Missouri legislator would, I 
> assume, be claiming the protection of the Missouri RFRA.  And those statutes 
> do seem to take the view that "the essence of religious freedom is that a 
> person is not forced to choose between obeying their God and obeying their 
> government" and "[t]hat's certainly at the heart of free exercise” as secured 
> by the statutes, if not by the federal Free Exercise Clause.
>  
> Eugene
>  
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of West, Ellis
> > Sent: Friday, August 16, 2013 12:55 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Harmony and the freedom of religion (RE: New Twist On
> > Challenge to ACA Contraceptive Mandate)
> >
> > I fear that many of you will think I am pompous, if not arrogant, in saying
> > what follows, but I feel compelled to respond to Brad Pardee's post.  For
> > years now, I have been reading all the posts on this blog, most of which 
> > have
> > dealt with the issue of when, on the basis of religious liberty, persons 
> > have a
> > right to be exempt from having to obey valid secular that persons generally
> > have to obey.  Recently, I find myself just shaking my head, because the
> > debate goes on and on, and will continue to do so, because there is simply 
> > no
> > clear answer to the question.  The sad thing about the debate is that as it 
> > has
> > been structured, it is so unnecessary.  Of course, if legislatures want to
> > exempt certain persons from certain laws on the basis of certain criteria, 
> > that
> > is their prerogative.  The debate on this blog, however, has been based on
> > the assumption that religious freedom, at least under certain circumstances,
> > gives persons a right to be exempt from obeying valid civil laws.  More
> > specifically, too many entries assume, along with Brad, that "the essence of
> > religious freedom is that a person is not forced to choose between obeying
> > their God and obeying their government" and "[t]hat's certainly at the heart
> > of free exercise."
> >
> > If, however, Brad is referring to the free exercise of religion guaranteed 
> > in
> > the First Amendment, then his understanding of religious freedom is way off
> > base.  Based on a thorough review of the historical evidence, I am 
> > finishing a
> > book on the original meaning of the free exercise clause, and I have yet to
> > find any early American advocate of religious liberty, except for some
> > Quakers, who understood it as meaning that persons could not be forced to
> > choose between obeying their God and obeying their government.  (There
> > may be such persons, but I have not found them.)  The issue of religion-
> > based exemptions from valid laws was simply not on their minds, and they
> > did not address it explicitly.  Rather the all-consuming issue was that of
> > establishments of religion, and freedom of religion meant freedom from
> > such establishments and all laws associated with them, i.e., freedom from
> > laws whose primary purpose was to favor one religion, religious belief or
> > practice, over another or to discriminate for and against persons because of
> > their religion.  Stated differently, the no establishment and free exercise
> > clauses were simply two different ways of saying the same thing.  To the
> > extent that early Americans implicitly addressed the issue, they emphasized
> > that religion could not be used as an excuse for obeying valid civil laws.  
> > Only
> > some Quakers would have agreed with Brad's understanding o

Re: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Marci Hamilton]

Thanks, Ellis, for your valuable post.  Let's also add that the framing 
generation understood and articulated a distinction between liberty and 
licentiousness, as I have written before.   And set a boundary on religious 
liberty of safety and the public good.  Indeed, pastors preached abiding by the 
law
from the pulpit.

 The principle was "ordered liberty" from the beginning, not what I have come 
to think of as narcissistic liberty, which is that liberty that is supposed to 
be judged only from the inside of the believer's head and world view and fails 
to take truly seriously the culture's, third-party, and historical limits.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 16, 2013, at 3:54 PM, "West, Ellis"  wrote:

> I fear that many of you will think I am pompous, if not arrogant, in saying 
> what follows, but I feel compelled to respond to Brad Pardee's post.  For 
> years now, I have been reading all the posts on this blog, most of which have 
> dealt with the issue of when, on the basis of religious liberty, persons have 
> a right to be exempt from having to obey valid secular that persons generally 
> have to obey.  Recently, I find myself just shaking my head, because the 
> debate goes on and on, and will continue to do so, because there is simply no 
> clear answer to the question.  The sad thing about the debate is that as it 
> has been structured, it is so unnecessary.  Of course, if legislatures want 
> to exempt certain persons from certain laws on the basis of certain criteria, 
> that is their prerogative.  The debate on this blog, however, has been based 
> on the assumption that religious freedom, at least under certain 
> circumstances, gives persons a right to be exempt from obeying valid civil 
> laws.  More specifically, too many entries assume, along with Brad, that "the 
> essence of religious freedom is that a person is not forced to choose between 
> obeying their God and obeying their government" and "[t]hat's certainly at 
> the heart of free exercise."
> 
> If, however, Brad is referring to the free exercise of religion guaranteed in 
> the First Amendment, then his understanding of religious freedom is way off 
> base.  Based on a thorough review of the historical evidence, I am finishing 
> a book on the original meaning of the free exercise clause, and I have yet to 
> find any early American advocate of religious liberty, except for some 
> Quakers, who understood it as meaning that persons could not be forced to 
> choose between obeying their God and obeying their government.  (There may be 
> such persons, but I have not found them.)  The issue of religion-based 
> exemptions from valid laws was simply not on their minds, and they did not 
> address it explicitly.  Rather the all-consuming issue was that of 
> establishments of religion, and freedom of religion meant freedom from such 
> establishments and all laws associated with them, i.e., freedom from laws 
> whose primary purpose was to favor one religion, religious belief or 
> practice, over another or to discriminate for and against persons because of 
> their religion.  Stated differently, the no establishment and free exercise 
> clauses were simply two different ways of saying the same thing.  To the 
> extent that early Americans implicitly addressed the issue, they emphasized 
> that religion could not be used as an excuse for obeying valid civil laws.  
> Only some Quakers would have agreed with Brad's understanding of religious 
> freedom, but as I showed years ago in an article in the Journal of Law and 
> Religion, when they attempted to get Pennsylvania to add a provision to its 
> constitution that would reflect their understanding, it was rejected.  
> Finally, contrary to what Brad says, the philosophy behind religious freedom 
> is not the same as the philosophy behind conscientious objection.  The former 
> pertains to what the government should not do, whereas the latter pertains to 
> whether an individual should follow his conscience regardless of what others, 
> including the government, may do to him or her.
> 
> Ellis M. West
> Emeritus Professor of Political Science 
> University of Richmond, VA 23173
> 804-289-8536
> ew...@richmond.edu
> 
> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
> Sent: Friday, August 16, 2013 2:36 PM
> To: 'Law & Religion issues for Law Academics'
> Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to 
> ACA Contraceptive Mandate)
> 
> I'm not certain that this is a correct understanding of 

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Marci Hamilton]

lt-child context than in
>>> the employer/employee context, or in the health insurance context
>>> than the employment context, but I think Chip is right that --
>>> wherever one ultimately comes out -- this is a classic baseline
>>> problem.
>>> 
>>> - Jim
>>> 
>>> Jim Oleske
>>> Lewis & Clark Law School
>>> SSRN Page: http://ssrn.com/author=357864 [3]
>>> Faculty Page: http://law.lclark.edu/faculty/james_oleske/ [4]
>>> 
>>> On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene >> [5]> wrote:
>>> 
>>>> But wait: How can you read ACA as setting a baseline that _the
>>>> parents _should guarantee their adult children a full bundle of
>>>> health services? The ACA doesn’t require parents to do this. It
>>>> allows parents to do this, and many parents do indeed do this, but
>>>> adult children have no right vis-à-vis the parents to get
>>>> insurance coverage. The father is free to just tell his children,
>>>> “Sorry, I won’t get you health coverage”; that’s not
>>>> “taking” health coverage from them, it’s just choosing not
>>>> to give health coverage to them. How is it “taking” for him to
>>>> offer to give less than complete health coverage to them?
>>>> 
>>>> Eugene
>>>> 
>>>> FROM: religionlaw-boun...@lists.ucla.edu [1]
>>>> [mailto:religionlaw-boun...@lists.ucla.edu [2]] ON BEHALF OF Ira
>>>> Lupu
>>>> SENT: Friday, August 16, 2013 6:07 PM
>>>> TO: Law & Religion issues for Law Academics
>>>> SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate
>>>> 
>>>> Eugene and I agree that this legislator is not substantially
>>>> burdened in his religious freedom, because he is under no duty to
>>>> buy a family policy. He can avoid the burden without the
>>>> government penalizing him.
>>>> 
>>>> So he is in a different position than employers, like Hobby Lobby,
>>>> who will have to pay a penalty if they drop their health coverage
>>>> of employees.
>>>> 
>>>> But the question of "imposing costs" on his daughters is not as
>>>> simple as Eugene and others seem to want to make it. This is a
>>>> classic baseline problem. If the baseline for the daughters is no
>>>> insurance coverage, then their father seems to want to make them
>>>> better off (just not as well off as he might). But if the baseline
>>>> is the full bundle of health services that the United States has
>>>> asserted should be guaranteed to women covered by a policy that
>>>> satisfies ACA, then the daughters are worse off, because their
>>>> father has asserted his religious freedom as a justification for
>>>> talking one essential (according to the government) item out of
>>>> their bundle.
>>>> 
>>>> (Sometimes I think that what people see in these ACA cases is what
>>>> they want to see, but I suppose I am no more capable of escaping
>>>> that tendency than anyone else.)
>>> 
>>> [snip]
>>> 
>>>> 
>>>>> On 2013-08-16 17:38, Volokh, Eugene wrote:
>>>>> > I still don't understand the rhetoric of "imposing on his
>>>> daughters"
>>>>> > here. Plaintiff is entitled, as a benefit for himself because
>>>> of his
>>>> > > employment, to coverage for his 18-year-old daughters as well
>>>> as for
>>>>> > himself. But it's his choice; he is entirely free to say
>>>> "Sorry, gals,
>>>>> > you're on your own now." Maybe that's unkind towards to his
>>>> children,
>>>> > > but it's not something that the law views as "imposing on his
>>>>> > daughters the cost of medical insurance." Rather, it's
>>>> "declining to
>>>>> > give the daughters a gift [albeit a subsidized one] of medical
>>>> > > insurance." (Incidentally, wouldn't he still have to pay for
>>>> his
>>>>> > daughters under many employer plans, which reasonably charge
>>>> extra for
>>>>> > extra insureds?) In this respect, it's very much like a
>>>> parent's
>>>> > > declining to pay for his adult children's college.
>>>>> >
>>&

Re: New Twist On Challenge to ACA Contraceptive Mandate

[mallamud]

Marci,
I have trouble seeing the compelling nature in the government's 
interest to provide contraception.  The cost is too low, and basically, 
contraception allows for pleasure and the enhancement of interpersonal 
relationships. The health justification comes closer, but compared to 
the provision of needles for drug use (I do not know if that is a 
compelling interest), there is certainly not generally addiction 
involved.  Even with abortion, government does not need to fund it--the 
compelling interest is in not making it illegal.

Jon

On 2013-08-17 10:57, Marci Hamilton wrote:

I agree w Chip and Jim on the baseline issue, but also the previous
point about the point of the Religion Clauses is not just rights for
the believer but also the path to peace in a diverse religious
culture. Lee and Bowen v Roy stand for the proposition that if one
chooses to employ or to take advantage of govt benefits, the Free
Exercise Clause does not provide a way out of the obligations that
come w the voluntary decision made by the believer. RFRA opens a door
for believers to get past these sensible decisions, but I do not 
think

that even if the parent who voluntarily chooses to cover his children
over the age of majority could prove substantial burden, the govt 
does

have a compelling interest in giving women the most realistic
opportunity to choose for themselves whether to use contraception for
any reason and to make sure those choices are as unhindered as men's
decisions to pursue their own choices. The women are being protected
by the govt from coercion by employers and parents.

The govt also has a compelling interest in keeping health care costs
under control. Chip mentions unwanted pregnancy; I mentioned some of
the medical reasons reproductive health services are needed, which 
can

affect GDP if untreated. And finally, there is the govt's legitimate
compelling interest in ensuring the health care system does not
discriminate on the basis of gender or religion and does enable
women's choices. There is no less restrictive means of giving each
woman her own choice regarding reproductive health than giving her a
choice.

The abortion decisions to date have all been about what the state can
do to restrict women's rights. But those restrictions are not
constitutionally required. Just because the government is not 
required

to pay for reproductive health care does not mean the govt does not
have a compelling interest in providing it. This is a new scenario
where the govt is on the side of women and reproductive rights, which
entails new ways of thinking.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton

On Aug 17, 2013, at 8:54 AM, James Oleske 
wrote:


Eugene,

No federal or state law required the Amish farmer in Lee to employ
workers, but once he made that choice, the Supreme Court used the
federal requirements governing employment benefits as the baseline
for evaluating externalities ("Granting an exemption from social
security taxes to an employer operates to impose the employer's
religious faith on the employees.").

Likewise, although no federal or state law requires parents to put
their adult children on their insurance, once they make that choice,
the argument is that federal requirements governing health benefits
should be used as the baseline for evaluating externalities.

Of course, it's certainly possible to argue that the baseline should
be set in a different place in parent/adult-child context than in
the employer/employee context, or in the health insurance context
than the employment context, but I think Chip is right that --
wherever one ultimately comes out -- this is a classic baseline
problem.

- Jim

Jim Oleske
Lewis & Clark Law School
SSRN Page: http://ssrn.com/author=357864 [3]
Faculty Page: http://law.lclark.edu/faculty/james_oleske/ [4]

On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene  wrote:


But wait: How can you read ACA as setting a baseline that _the
parents _should guarantee their adult children a full bundle of
health services? The ACA doesn’t require parents to do this. It
allows parents to do this, and many parents do indeed do this, but
adult children have no right vis-à-vis the parents to get
insurance coverage. The father is free to just tell his children,
“Sorry, I won’t get you health coverage”; that’s not
“taking” health coverage from them, it’s just choosing not
to give health coverage to them. How is it “taking” for him to
offer to give less than complete health coverage to them?

Eugene

FROM: religionlaw-boun...@lists.ucla.edu [1]
[mailto:religionlaw-boun...@lists.ucla.edu [2]] ON BEHALF OF Ira
Lupu
SENT: Friday, August 16, 2013 6:07 PM
TO: Law & Religion issues for Law Academics
SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate

Eugene and I agree that this legislator i

RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[mallamud]

Perhaps I should have said that one important function of freedom of 
religious is the preservation of social* and political harmony.  One 
need only compllare the United States to Egypt today so see my point.


 Jon

*I believe that the values behind the first amendment go beyond the 
legally binding aspects and are values that many individuals respect 
and, whatever the law, may be furthered or retarded by individual 
action.


On 2013-08-16 16:21, Volokh, Eugene wrote:

    I agree with Ellis that the Free
Exercise Clause shouldn't generally be read as mandating religious
exemptions.  But the debate these days (at least on this blog) is
usually not about the Free Exercise Clause but about RFRAs, which _do
_involve legislatively created exemptions (albeit ones created in 
bulk

rather than on a statute-by-state basis).  The ACA debate is mostly
about the federal RFRA.  The Missouri legislator would, I assume, be
claiming the protection of the Missouri RFRA.  And those statutes do
seem to take the view that "the essence of religious freedom is that 
a

person is not forced to choose between obeying their God and obeying
their government" and "[t]hat's certainly at the heart of free
exercise” as secured by the statutes, if not by the federal Free
Exercise Clause.

    Eugene


-Original Message-



From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-



boun...@lists.ucla.edu] On Behalf Of West, Ellis



Sent: Friday, August 16, 2013 12:55 PM



To: Law & Religion issues for Law Academics



Subject: RE: Harmony and the freedom of religion (RE: New Twist On



Challenge to ACA Contraceptive Mandate)







I fear that many of you will think I am pompous, if not arrogant, in

saying


what follows, but I feel compelled to respond to Brad Pardee's

post.  For


years now, I have been reading all the posts on this blog, most of

which have


dealt with the issue of when, on the basis of religious liberty,

persons have a


right to be exempt from having to obey valid secular that persons

generally


have to obey.  Recently, I find myself just shaking my head,

because the


debate goes on and on, and will continue to do so, because there is

simply no


clear answer to the question.  The sad thing about the debate is

that as it has


been structured, it is so unnecessary.  Of course, if legislatures

want to


exempt certain persons from certain laws on the basis of certain

criteria, that


is their prerogative.  The debate on this blog, however, has been

based on


the assumption that religious freedom, at least under certain

circumstances,


gives persons a right to be exempt from obeying valid civil laws. 

More


specifically, too many entries assume, along with Brad, that "the

essence of


religious freedom is that a person is not forced to choose between

obeying


their God and obeying their government" and "[t]hat's certainly at

the heart


of free exercise."







If, however, Brad is referring to the free exercise of religion

guaranteed in


the First Amendment, then his understanding of religious freedom is

way off


base.  Based on a thorough review of the historical evidence, I am

finishing a


book on the original meaning of the free exercise clause, and I have

yet to


find any early American advocate of religious liberty, except for

some


Quakers, who understood it as meaning that persons could not be

forced to


choose between obeying their God and obeying their government. 

(There


may be such persons, but I have not found them.)  The issue of

religion-


based exemptions from valid laws was simply not on their minds, and

they


did not address it explicitly.  Rather the all-consuming issue was

that of


establishments of religion, and freedom of religion meant freedom

from


such establishments and all laws associated with them, i.e., freedom

from


laws whose primary purpose was to favor one religion, religious

belief or


practice, over another or to discriminate for and against persons

because of


their religion.  Stated differently, the no establishment and free

exercise


clauses were simply two different ways of saying the same thing. 

To the


extent that early Americans implicitly addressed the issue, they

emphasized


that religion could not be used as an excuse for obeying valid civil

laws.  Only


some Quakers would have agreed with Brad's understanding of

religious


freedom, but as I showed years ago in an article in the Journal of

Law and


Religion, when they attempted to get Pennsylvania to add a provision

to its


constitution that would reflect their understanding, it was

rejected.  Finally,


contrary to what Brad says, the philosophy behind religious freedom

is not


the same as the philosophy behind conscientious objection.  The

former


pertains to what the government should not do, whereas t

RE: New Twist On Challenge to ACA Contraceptive Mandate

[mallamud]

While this discussion presents an opportunity to engage in an 
intellectual discussion of the doctrine used to implement RFRA, it also 
highlights the problem involved its sweeping application.  As a legal I 
think that an earlier post (to which I referred in a previous post) 
suggesting that the plaintiff did not have standing ends the discussion 
relevant to the case. Alternatively I see no substantial burden.  
Nothing compels the plaintiff or his daughters to use contraception. The 
insurance provides benefits for which he pays but need not use unless he 
or his daughters make an independent decision to do so. The pork hypo in 
Allen Brownstein's post involves limiting a portion salary to purchase 
of something the recipient of the salary does not want and is arguably 
an unlawful seizing of purchasing power.


Although in law school torts class I was taught to focus on "result 
within the risk" rather than proximate cause, I think that the reasoning 
under proximate cause allows courts to avoid getting involved in complex 
discussion like the one on this thread.  In the case under discussion 
here whatever upset is caused by the plaintiff and his daughters having 
the capacity to purchase contraception is just too removed from the 
government action because, for their non-contraception beliefs to be 
violated, an intervening action must occur: they must act affirmatively 
to obtain contraceptives. [Note that there is no additional cost to the 
insured for the contraceptive coverage. But in any event, when we buy 
group health insurance we often get coverage (like maternity benefits) 
that many of us are in no position to use.]


Returning to my basic premise, allowing people to use the courts to 
vindicate emotional upset caused by mere disagreement with government 
policies will result in disharmony rather than the ability to live 
together in a diverse society, a major purpose of the religion clauses.


  Jon





On 2013-08-17 12:31, Alan Brownstein wrote:

This has been a fascinating thread. I'm on vacation and have not had
the opportunity to participate except for a quick comment right now.
With regard to the substantial burden, would the analysis change if 
we

characterized the ACA (at least for employees  who would not receive
subsidies for their insurance) as a regulation that requires 
employers

to pay part of their employee's compensation package with a health
insurance policy?

I assume that if the government required employers to pay their
employees 5% of their salary in non-transferable pork vouchers, that
would be a substantial burden on individuals who for religious 
reasons

do not eat pork -- even though I could just refuse to use the
vouchers.

I'm not sure that my hypo can be reasonably analogized to the ACA,
but if it can, then I think the substantial burden analysis might be
different.

Alan Brownstein




From: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
[vol...@law.ucla.edu]
Sent: Friday, August 16, 2013 5:49 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

I agree; as I wrote near the start of the thread, "I'm not
sympathetic to the legislator's claim, and I'm not sure that the
provision of only a general insurance policy and not the one with the
exceptions substantially burdens the legislator's belief.  Indeed, 
the

legislator's ability to send a disclaimer to the insurance carrier
promising not to use certain services would, I think, suffice to
eliminate any burden he might feel from having the policy.  Cf. Tony 
&

Susan Alamo Foundation v. Secretary of Labor,
http://scholar.google.com/scholar_case?case=5047029536558334851
(alleged burden imposed by minimum wage law on employees who felt a
religious duty to volunteer was eliminated by the possibility of just
giving the money back)."

But that's a very different argument from the argument that
the legislator's seeking a narrower insurance policy is "imposing on
his daughters."  The problem with his claim isn't that he's somehow
denying his daughters something to which they're entitled, or that 
his

conduct creates an externality.

Eugene
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To post, send message to Religionlaw@l

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Alan Brownstein]

This has been a fascinating thread. I'm on vacation and have not had the 
opportunity to participate except for a quick comment right now. With regard to 
the substantial burden, would the analysis change if we characterized the ACA 
(at least for employees  who would not receive subsidies for their insurance) 
as a regulation that requires employers to pay part of their employee's 
compensation package with a health insurance policy?

I assume that if the government required employers to pay their employees 5% of 
their salary in non-transferable pork vouchers, that would be a substantial 
burden on individuals who for religious reasons do not eat pork -- even though 
I could just refuse to use the vouchers.

I'm not sure that my hypo can be reasonably analogized to the ACA, but if it 
can, then I think the substantial burden analysis might be different.

Alan Brownstein




From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Friday, August 16, 2013 5:49 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

I agree; as I wrote near the start of the thread, "I'm not sympathetic 
to the legislator's claim, and I'm not sure that the provision of only a 
general insurance policy and not the one with the exceptions substantially 
burdens the legislator's belief.  Indeed, the legislator's ability to send a 
disclaimer to the insurance carrier promising not to use certain services 
would, I think, suffice to eliminate any burden he might feel from having the 
policy.  Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 
http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged burden 
imposed by minimum wage law on employees who felt a religious duty to volunteer 
was eliminated by the possibility of just giving the money back)."

But that's a very different argument from the argument that the 
legislator's seeking a narrower insurance policy is "imposing on his 
daughters."  The problem with his claim isn't that he's somehow denying his 
daughters something to which they're entitled, or that his conduct creates an 
externality.

Eugene
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Anyone can subscribe to the list and read messages that are posted; people can 
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Re: New Twist On Challenge to ACA Contraceptive Mandate

[Marci Hamilton]

I was not suggesting only the burden on taxpayers, though when it comes to a 
national scheme of healthcare, I think the compelling interest standard is met 
by women's reproductive health.

I was also suggesting the govt has a compelling interest in (1)ensuring women 
have reasonable means of obtaining reproductive health care and (2) supporting 
women's constitutional right to choose by (a) making such health care 
affordable and (b) protecting women from being coerced in such decisions by 
their for-profit employers or parents.   It is not that the woman has a 
constitutional right to the health care coverage per se, but rather the govt 
has a compelling interest in creating the conditions where women will be able 
to exercise their choices over their bodies.

Sherbert and Yoder would have come out differently I believe if the Court had 
found the govt's interest was compelling.  W Sherbert, the interest wasnt 
persuasive because of the other secular exemptions.  I think the Court was just 
wrong in its compelling interest analysis of Yoder, but it is not the
Interest at stake here.


Also-- this thread  takes us back to the RFRAs' built-in constitutional 
defects.  The discussion about how Lee, Sherbert, and Yoder should control RFRA 
interpretation reinforces the argument (whether under the federal or state 
constitutions) that RFRA is nothing more than a constitutional amendment to the 
First Am passed via a simple majority without the obligations imposed by Art V 
(see the footnote in 

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 17, 2013, at 11:57 AM, "Volokh, Eugene"  wrote:

> That is a different argument, and potentially a plausible one.  The concern 
> isn’t that the parent is trying to force his religion on his daughters, but 
> rather that taxpayers will be left holding the bag.  (I don’t think the 
> “temptation” argument suffices, at least under the strict scrutiny test, but 
> the burden on taxpayers one is different.)
>  
> But doesn’t Sherbert suggest that (assuming a substantial burden is present), 
> avoiding any burden – even a relatively slight one – on taxpayers is not 
> necessarily a sufficient government interest?  Likewise, doesn’t Yoder 
> suggest that claims of burden on taxpayers have to be demonstrated to a 
> significant degree, and considered together with any countervailing fiscal 
> benefits that the group’s practices might have?  (The question of the net 
> fiscal cost of unwanted pregnancy, for instance, is complicated; unwanted 
> children cost the government money for prenatal care, and may burden the 
> social welfare system, but they may also grow up to be taxpayers who help 
> fund that social welfare system.)
>  
> One merit of a pure Smith regime is that courts don’t have to get in to these 
> questions of deciding what is and what isn’t an externality, and what the 
> empirical effects of particular conduct are.  But if we are to have a RFRA 
> regime, then there has to be a limit to these sorts of 
> externalities-on-taxpayers arguments, it seems to me, at least if Sherbert 
> and Yoder are among the cases being “restored.”
>  
> Eugene
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
> Sent: Saturday, August 17, 2013 5:32 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate
>  
> The baseline set by the ACA is NOT a matter of obligation between parents and 
> children.  In that regard, the parent has no obligation to obtain health 
> coverage for his non-minor daughters (although the 12 year old, either now or 
> sometime later but before the age of majority, might need emergency 
> contraception for health reasons, and then the parent might indeed have some 
> obligation to cover or pay for the service).
>  
> The baseline is the minimum coverage requirements ("essential services," 
> which include pregnancy prevention services) for policies that will satisfy 
> the ACA.  In the Missouri case, allowing the parent to buy a policy that 
> excludes those services puts the insured daughters at increased risk of 
> unwanted pregnancy.  And I'm sure we all agree that unwanted pregnancies 
> impose substantial costs (many of which are not covered by health insurance) 
> on third parties, including but not limited to the women who experience such 
> pregnancies.
>  
> Here's another analogy -- a parent wants to buy her non-minor child a car, 
> but the parent makes a religious freedom argument that she should be free to 
> buy a car without seat belts.  (Assume this is a sincere religious claim.)  
> The parent of course has no obligation to buy t

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

That is a different argument, and potentially a plausible one.  The concern 
isn't that the parent is trying to force his religion on his daughters, but 
rather that taxpayers will be left holding the bag.  (I don't think the 
"temptation" argument suffices, at least under the strict scrutiny test, but 
the burden on taxpayers one is different.)

But doesn't Sherbert suggest that (assuming a substantial burden is present), 
avoiding any burden - even a relatively slight one - on taxpayers is not 
necessarily a sufficient government interest?  Likewise, doesn't Yoder suggest 
that claims of burden on taxpayers have to be demonstrated to a significant 
degree, and considered together with any countervailing fiscal benefits that 
the group's practices might have?  (The question of the net fiscal cost of 
unwanted pregnancy, for instance, is complicated; unwanted children cost the 
government money for prenatal care, and may burden the social welfare system, 
but they may also grow up to be taxpayers who help fund that social welfare 
system.)

One merit of a pure Smith regime is that courts don't have to get in to these 
questions of deciding what is and what isn't an externality, and what the 
empirical effects of particular conduct are.  But if we are to have a RFRA 
regime, then there has to be a limit to these sorts of 
externalities-on-taxpayers arguments, it seems to me, at least if Sherbert and 
Yoder are among the cases being "restored."

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Saturday, August 17, 2013 5:32 AM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

The baseline set by the ACA is NOT a matter of obligation between parents and 
children.  In that regard, the parent has no obligation to obtain health 
coverage for his non-minor daughters (although the 12 year old, either now or 
sometime later but before the age of majority, might need emergency 
contraception for health reasons, and then the parent might indeed have some 
obligation to cover or pay for the service).

The baseline is the minimum coverage requirements ("essential services," which 
include pregnancy prevention services) for policies that will satisfy the ACA.  
In the Missouri case, allowing the parent to buy a policy that excludes those 
services puts the insured daughters at increased risk of unwanted pregnancy.  
And I'm sure we all agree that unwanted pregnancies impose substantial costs 
(many of which are not covered by health insurance) on third parties, including 
but not limited to the women who experience such pregnancies.

Here's another analogy -- a parent wants to buy her non-minor child a car, but 
the parent makes a religious freedom argument that she should be free to buy a 
car without seat belts.  (Assume this is a sincere religious claim.)  The 
parent of course has no obligation to buy the car at all, but if we allow that 
exemption, we allow the parent to put the child at increased risk of serious 
injury.  Of course, we could frame the objection in terms of the government's 
compelling interest in reducing the risk of that kind of injury.  But we could 
also say that the parent is imposing costs on the child (who is tempted to take 
the free but less safe car) as well as other third parties (insurors, who might 
have to pay more in case of an accident, or other drivers, who might face 
increased liability for injury.)   The real ACA case might be stronger in terms 
of negative externalities than the hypothetical car case, because the ACA 
involves both universal obligation (everyone, including those non-minor 
daughters, must be insured) and entitlement (a policy that satisfies the ACA 
must include essential services).

On Sat, Aug 17, 2013 at 12:05 AM, Scarberry, Mark 
mailto:mark.scarbe...@pepperdine.edu>> wrote:
Eugene has a very good point. My employer gives me a choice of signing up for 
(1) employee-only health insurance (lowest cost) , (2) 
employee-plus-one-dependent insurance (higher cost), or (3) 
employee-plus-two-or-more-dependents insurance (highest cost). (And then the 
premiums are also different depending on whether I choose an HMO or an EPO or a 
PPO plan.) That's probably typical of employers who offer coverage beyond just 
the employee.

I don't believe the law requires me to sign up for a plan that provides 
coverage for any or all of the members of my family. A child can stay on the 
parent's plan until 26 under the ACA, but that doesn't mean the parent has to 
sign the child up for coverage; at least I don't think it does.

My contribution to the monthly premiums under the "employee plus two or more 
dependents" option is the same whether I'm covering 2 dependents or 12. But in 
any event the coverage only extends 

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I just don't see how that argument is at all compelling.  It's 
true that the Amish farmer in Lee didn't have to employ workers, but the 
government was essentially putting a tax on the employment of workers, and 
there was a compelling interest in enforcing the tax evenhandedly.

But here, the government is simply allowing parents to give a 
gift (usually at some expense to themselves) to their children.  How does it 
make sense to label an "externality" a choice not to give a gift, or to give a 
version of the gift that's less valuable than you might like?

To be sure, I recognize that much religious activity can impose 
externalities.  That's why I think Sherbert v. Verner and Wisconsin v. Yoder 
are mistaken.  But Congress and the Missouri Legislature disagree with me; they 
think such activity should indeed be protected despite at least certain kinds 
of externalities that it actually does impose.  Here, we have an activity - the 
choice to try to give a smaller gift than one would like - that seems very hard 
to label "externality" as to the gift recipient unless the term loses all 
meaning.  Perhaps there's enough of an administrative burden on employers to 
count as an externality (or, more likely, there's not enough of a burden on the 
employee to trigger RFRA, as I've argued before) - just not on the recipient of 
the gift.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of James Oleske
Sent: Saturday, August 17, 2013 5:55 AM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Eugene,

No federal or state law required the Amish farmer in Lee to employ workers, but 
once he made that choice, the Supreme Court used the federal requirements 
governing employment benefits as the baseline for evaluating externalities 
("Granting an exemption from social security taxes to an employer operates to 
impose the employer's religious faith on the employees.").

Likewise, although no federal or state law requires parents to put their adult 
children on their insurance, once they make that choice, the argument is that 
federal requirements governing health benefits should be used as the baseline 
for evaluating externalities.

Of course, it's certainly possible to argue that the baseline should be set in 
a different place in parent/adult-child context than in the employer/employee 
context, or in the health insurance context than the employment context, but I 
think Chip is right that -- wherever one ultimately comes out -- this is a 
classic baseline problem.

- Jim

Jim Oleske
Lewis & Clark Law School
SSRN Page: http://ssrn.com/author=357864
Faculty Page: http://law.lclark.edu/faculty/james_oleske/

On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:

But wait:  How can you read ACA as setting a baseline that the 
parents should guarantee their adult children a full bundle of health services? 
 The ACA doesn't require parents to do this.  It allows parents to do this, and 
many parents do indeed do this, but adult children have no right vis-à-vis the 
parents to get insurance coverage.  The father is free to just tell his 
children, "Sorry, I won't get you health coverage"; that's not "taking" health 
coverage from them, it's just choosing not to give health coverage to them.  
How is it "taking" for him to offer to give less than complete health coverage 
to them?



Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 6:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate



Eugene and I agree that this legislator is not substantially burdened in his 
religious freedom, because he is under no duty to buy a family policy.  He can 
avoid the burden without the government penalizing him.

So he is in a different position than employers, like Hobby Lobby, who will 
have to pay a penalty if they drop their health coverage of employees.



But the question of "imposing costs" on his daughters is not as simple as 
Eugene and others seem to want to make it.  This is a classic baseline problem. 
 If the baseline for the daughters is no insurance coverage, then their father 
seems to want to make them better off (just not as well off as he might).  But 
if the baseline is the full bundle of health services that the United States 
has asserted should be guaranteed to women covered by a policy that satisfies 
ACA, then the daughters are worse off, because their father

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Marci Hamilton]

I agree w Chip and Jim on the baseline issue, but also the previous point about 
the point of the Religion Clauses is not just rights for the believer but also 
the path to peace in a diverse religious culture.   Lee and Bowen v Roy stand 
for the proposition that if one chooses to employ or to take advantage of govt 
benefits, the Free Exercise Clause does not provide a way out of the 
obligations that come w the voluntary decision made by the believer.  RFRA 
opens a door for believers to get past these sensible decisions, but I do not 
think that even if the parent who voluntarily chooses to cover his children 
over the age of majority could prove substantial burden, the govt does have a 
compelling interest in giving women the most realistic opportunity to choose 
for themselves whether to use contraception for any reason and to make sure 
those choices are as unhindered as men's decisions to pursue their own choices. 
  The women are being protected by the govt  from coercion by employers and 
parents.

The govt also has a compelling interest in keeping health care costs under 
control.   Chip mentions unwanted pregnancy; I mentioned some of the medical 
reasons reproductive health services are needed, which can affect GDP if 
untreated.  And finally, there is the govt's legitimate compelling interest in 
ensuring the health care system does not discriminate on the basis of gender or 
religion and does enable women's choices.   There is no less restrictive means 
of giving each woman her own choice regarding reproductive health than giving 
her a choice.

The abortion decisions to date have all been about what the state can do to 
restrict women's rights.  But those restrictions are not constitutionally 
required. Just because the government is not required to pay for reproductive 
health care does not mean the govt does not have a compelling interest in 
providing it.  This is a new scenario where the govt is on the side of women 
and reproductive rights, which entails new ways of thinking.


Marci



Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 17, 2013, at 8:54 AM, James Oleske  wrote:

> Eugene,
> 
> No federal or state law required the Amish farmer in Lee to employ workers, 
> but once he made that choice, the Supreme Court used the federal requirements 
> governing employment benefits as the baseline for evaluating externalities 
> ("Granting an exemption from social security taxes to an employer operates to 
> impose the employer's religious faith on the employees."). 
> 
> Likewise, although no federal or state law requires parents to put their 
> adult children on their insurance, once they make that choice, the argument 
> is that federal requirements governing health benefits should be used as the 
> baseline for evaluating externalities.
> 
> Of course, it's certainly possible to argue that the baseline should be set 
> in a different place in parent/adult-child context than in the 
> employer/employee context, or in the health insurance context than the 
> employment context, but I think Chip is right that -- wherever one ultimately 
> comes out -- this is a classic baseline problem. 
> 
> - Jim
> 
> Jim Oleske
> Lewis & Clark Law School
> SSRN Page: http://ssrn.com/author=357864
> Faculty Page: http://law.lclark.edu/faculty/james_oleske/
> 
> On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene  wrote:
>> But wait:  How can you read ACA as setting a baseline that 
>> the parents should guarantee their adult children a full bundle of health 
>> services?  The ACA doesn’t require parents to do this.  It allows parents to 
>> do this, and many parents do indeed do this, but adult children have no 
>> right vis-à-vis the parents to get insurance coverage.  The father is free 
>> to just tell his children, “Sorry, I won’t get you health coverage”; that’s 
>> not “taking” health coverage from them, it’s just choosing not to give 
>> health coverage to them.  How is it “taking” for him to offer to give less 
>> than complete health coverage to them?
>> 
>>  
>> 
>> Eugene
>> 
>> 
>> From: religionlaw-boun...@lists.ucla.edu 
>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
>> Sent: Friday, August 16, 2013 6:07 PM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate
>> 
>>  
>> 
>> Eugene and I agree that this legislator is not substantially burdened in his 
>> religious freedom, because he is under no duty to buy a family policy.  He 
>> can avoid the burden without the government penalizing him.
>> 
>> So he is 

Re: New Twist On Challenge to ACA Contraceptive Mandate

[James Oleske]

Eugene,

No federal or state law required the Amish farmer in Lee to employ workers,
but once he made that choice, the Supreme Court used the federal
requirements governing employment benefits as the baseline for evaluating
externalities ("Granting an exemption from social security taxes to an
employer operates to impose the employer's religious faith on the
employees.").

Likewise, although no federal or state law requires parents to put their
adult children on their insurance, once they make that choice, the argument
is that federal requirements governing health benefits should be used as
the baseline for evaluating externalities.

Of course, it's certainly possible to argue that the baseline should be set
in a different place in parent/adult-child context than in the
employer/employee context, or in the health insurance context than the
employment context, but I think Chip is right that -- wherever one
ultimately comes out -- this is a classic baseline problem.

- Jim

Jim Oleske
Lewis & Clark Law School
SSRN Page: http://ssrn.com/author=357864
Faculty Page: http://law.lclark.edu/faculty/james_oleske/

On Fri, Aug 16, 2013 at 8:35 PM, Volokh, Eugene  wrote:

> But wait:  How can you read ACA as setting a baseline that
> *the parents *should guarantee their adult children a full bundle of
> health services?  The ACA doesn’t require parents to do this.  It allows
> parents to do this, and many parents do indeed do this, but adult children
> have no right vis-à-vis the parents to get insurance coverage.  The father
> is free to just tell his children, “Sorry, I won’t get you health
> coverage”; that’s not “taking” health coverage from them, it’s just
> choosing not to give health coverage to them.  How is it “taking” for him
> to offer to give less than complete health coverage to them?
>
>
>
> Eugene
>
>  *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu
> *Sent:* Friday, August 16, 2013 6:07 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: New Twist On Challenge to ACA Contraceptive Mandate
>
>
>
> Eugene and I agree that this legislator is not substantially burdened in
> his religious freedom, because he is under no duty to buy a family policy.
>  He can avoid the burden without the government penalizing him.
>
> So he is in a different position than employers, like Hobby Lobby, who
> will have to pay a penalty if they drop their health coverage of employees.
>
>
>
> But the question of "imposing costs" on his daughters is not as simple as
> Eugene and others seem to want to make it.  This is a classic baseline
> problem.  If the baseline for the daughters is no insurance coverage, then
> their father seems to want to make them better off (just not as well off as
> he might).  But if the baseline is the full bundle of health services that
> the United States has asserted should be guaranteed to women covered by a
> policy that satisfies ACA, then the daughters are worse off, because their
> father has asserted his religious freedom as a justification for talking
> one essential (according to the government) item out of their bundle.
>
>
>
> (Sometimes I think that what people see in these ACA cases is what they
> want to see, but I suppose I am no more capable of escaping that tendency
> than anyone else.)
>


[snip]


>  >
>
> > On 2013-08-16 17:38, Volokh, Eugene wrote:
> > > I still don't understand the rhetoric of "imposing on his daughters"
> > > here. Plaintiff is entitled, as a benefit for himself because of his
> > > employment, to coverage for his 18-year-old daughters as well as for
> > > himself. But it's his choice; he is entirely free to say "Sorry, gals,
> > > you're on your own now." Maybe that's unkind towards to his children,
> > > but it's not something that the law views as "imposing on his
> > > daughters the cost of medical insurance." Rather, it's "declining to
> > > give the daughters a gift [albeit a subsidized one] of medical
> > > insurance." (Incidentally, wouldn't he still have to pay for his
> > > daughters under many employer plans, which reasonably charge extra for
> > > extra insureds?) In this respect, it's very much like a parent's
> > > declining to pay for his adult children's college.
> > >
> > >  Now it's true that the plaintiff "wants it both ways," and maybe his
> > > employer shouldn't give him that option. But what I don't see is how
> > > his wanting it both ways is "imposing on his daughters&q

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Ira Lupu]

The baseline set by the ACA is NOT a matter of obligation between parents
and children.  In that regard, the parent has no obligation to obtain
health coverage for his non-minor daughters (although the 12 year old,
either now or sometime later but before the age of majority, might need
emergency contraception for health reasons, and then the parent might
indeed have some obligation to cover or pay for the service).

The baseline is the minimum coverage requirements ("essential services,"
which include pregnancy prevention services) for policies that will satisfy
the ACA.  In the Missouri case, allowing the parent to buy a policy that
excludes those services puts the insured daughters at increased risk of
unwanted pregnancy.  And I'm sure we all agree that unwanted pregnancies
impose substantial costs (many of which are not covered by health
insurance) on third parties, including but not limited to the women who
experience such pregnancies.

Here's another analogy -- a parent wants to buy her non-minor child a car,
but the parent makes a religious freedom argument that she should be free
to buy a car without seat belts.  (Assume this is a sincere religious
claim.)  The parent of course has no obligation to buy the car at all, but
if we allow that exemption, we allow the parent to put the child at
increased risk of serious injury.  Of course, we could frame the objection
in terms of the government's compelling interest in reducing the risk of
that kind of injury.  But we could also say that the parent is imposing
costs on the child (who is tempted to take the free but less safe car) as
well as other third parties (insurors, who might have to pay more in case
of an accident, or other drivers, who might face increased liability for
injury.)   The real ACA case might be stronger in terms of negative
externalities than the hypothetical car case, because the ACA involves both
universal obligation (everyone, including those non-minor daughters, must
be insured) and entitlement (a policy that satisfies the ACA must include
essential services).


On Sat, Aug 17, 2013 at 12:05 AM, Scarberry, Mark <
mark.scarbe...@pepperdine.edu> wrote:

> Eugene has a very good point. My employer gives me a choice of signing up
> for (1) employee-only health insurance (lowest cost) , (2)
> employee-plus-one-dependent insurance (higher cost), or (3)
> employee-plus-two-or-more-dependents insurance (highest cost). (And then
> the premiums are also different depending on whether I choose an HMO or an
> EPO or a PPO plan.) That’s probably typical of employers who offer coverage
> beyond just the employee. 
>
> ** **
>
> I don’t believe the law requires me to sign up for a plan that provides
> coverage for any or all of the members of my family. A child can stay on
> the parent’s plan until 26 under the ACA, but that doesn’t mean the parent
> has to sign the child up for coverage; at least I don’t think it does. ***
> *
>
> ** **
>
> My contribution to the monthly premiums under the “employee plus two or
> more dependents” option is the same whether I’m covering 2 dependents or
> 12. But in any event the coverage only extends to the dependents that I
> sign up. I could, for example, have several children ages 18 to 26, and I
> could sign up all of them, or none of them, or some of them.
>
> ** **
>
> Mark
>
> ** **
>
> Mark S. Scarberry
>
> Professor of Law
>
> Pepperdine Univ. School of Law
>
> ** **
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *Volokh, Eugene
> *Sent:* Friday, August 16, 2013 8:36 PM
>
> *To:* Law & Religion issues for Law Academics
> *Subject:* RE: New Twist On Challenge to ACA Contraceptive Mandate
>
> ** **
>
> But wait:  How can you read ACA as setting a baseline that
> *the parents *should guarantee their adult children a full bundle of
> health services?  The ACA doesn’t require parents to do this.  It allows
> parents to do this, and many parents do indeed do this, but adult children
> have no right vis-à-vis the parents to get insurance coverage.  The father
> is free to just tell his children, “Sorry, I won’t get you health
> coverage”; that’s not “taking” health coverage from them, it’s just
> choosing not to give health coverage to them.  How is it “taking” for him
> to offer to give less than complete health coverage to them?
>
> ** **
>
> Eugene
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [
> mailto:religionlaw-boun...@lists.ucla.edu]
> *On Behalf Of *Ira Lupu
> *Sent:* Friday, August 16, 2013 6:07 PM
> *To:* Law & Religion issues for Law Academics
> *Subject:* Re: New Twist On Challenge to ACA

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Scarberry, Mark]

Eugene has a very good point. My employer gives me a choice of signing up for 
(1) employee-only health insurance (lowest cost) , (2) 
employee-plus-one-dependent insurance (higher cost), or (3) 
employee-plus-two-or-more-dependents insurance (highest cost). (And then the 
premiums are also different depending on whether I choose an HMO or an EPO or a 
PPO plan.) That's probably typical of employers who offer coverage beyond just 
the employee.

I don't believe the law requires me to sign up for a plan that provides 
coverage for any or all of the members of my family. A child can stay on the 
parent's plan until 26 under the ACA, but that doesn't mean the parent has to 
sign the child up for coverage; at least I don't think it does.

My contribution to the monthly premiums under the "employee plus two or more 
dependents" option is the same whether I'm covering 2 dependents or 12. But in 
any event the coverage only extends to the dependents that I sign up. I could, 
for example, have several children ages 18 to 26, and I could sign up all of 
them, or none of them, or some of them.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 16, 2013 8:36 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

But wait:  How can you read ACA as setting a baseline that the 
parents should guarantee their adult children a full bundle of health services? 
 The ACA doesn't require parents to do this.  It allows parents to do this, and 
many parents do indeed do this, but adult children have no right vis-à-vis the 
parents to get insurance coverage.  The father is free to just tell his 
children, "Sorry, I won't get you health coverage"; that's not "taking" health 
coverage from them, it's just choosing not to give health coverage to them.  
How is it "taking" for him to offer to give less than complete health coverage 
to them?

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 6:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Eugene and I agree that this legislator is not substantially burdened in his 
religious freedom, because he is under no duty to buy a family policy.  He can 
avoid the burden without the government penalizing him.
So he is in a different position than employers, like Hobby Lobby, who will 
have to pay a penalty if they drop their health coverage of employees.

But the question of "imposing costs" on his daughters is not as simple as 
Eugene and others seem to want to make it.  This is a classic baseline problem. 
 If the baseline for the daughters is no insurance coverage, then their father 
seems to want to make them better off (just not as well off as he might).  But 
if the baseline is the full bundle of health services that the United States 
has asserted should be guaranteed to women covered by a policy that satisfies 
ACA, then the daughters are worse off, because their father has asserted his 
religious freedom as a justification for talking one essential (according to 
the government) item out of their bundle.

(Sometimes I think that what people see in these ACA cases is what they want to 
see, but I suppose I am no more capable of escaping that tendency than anyone 
else.)

___
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RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

But wait:  How can you read ACA as setting a baseline that the 
parents should guarantee their adult children a full bundle of health services? 
 The ACA doesn't require parents to do this.  It allows parents to do this, and 
many parents do indeed do this, but adult children have no right vis-à-vis the 
parents to get insurance coverage.  The father is free to just tell his 
children, "Sorry, I won't get you health coverage"; that's not "taking" health 
coverage from them, it's just choosing not to give health coverage to them.  
How is it "taking" for him to offer to give less than complete health coverage 
to them?

Eugene
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 6:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Eugene and I agree that this legislator is not substantially burdened in his 
religious freedom, because he is under no duty to buy a family policy.  He can 
avoid the burden without the government penalizing him.
So he is in a different position than employers, like Hobby Lobby, who will 
have to pay a penalty if they drop their health coverage of employees.

But the question of "imposing costs" on his daughters is not as simple as 
Eugene and others seem to want to make it.  This is a classic baseline problem. 
 If the baseline for the daughters is no insurance coverage, then their father 
seems to want to make them better off (just not as well off as he might).  But 
if the baseline is the full bundle of health services that the United States 
has asserted should be guaranteed to women covered by a policy that satisfies 
ACA, then the daughters are worse off, because their father has asserted his 
religious freedom as a justification for talking one essential (according to 
the government) item out of their bundle.

(Sometimes I think that what people see in these ACA cases is what they want to 
see, but I suppose I am no more capable of escaping that tendency than anyone 
else.)

On Fri, Aug 16, 2013 at 8:49 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
I agree; as I wrote near the start of the thread, "I'm not sympathetic 
to the legislator's claim, and I'm not sure that the provision of only a 
general insurance policy and not the one with the exceptions substantially 
burdens the legislator's belief.  Indeed, the legislator's ability to send a 
disclaimer to the insurance carrier promising not to use certain services 
would, I think, suffice to eliminate any burden he might feel from having the 
policy.  Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 
http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged burden 
imposed by minimum wage law on employees who felt a religious duty to volunteer 
was eliminated by the possibility of just giving the money back)."

But that's a very different argument from the argument that the 
legislator's seeking a narrower insurance policy is "imposing on his 
daughters."  The problem with his claim isn't that he's somehow denying his 
daughters something to which they're entitled, or that his conduct creates an 
externality.

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-<mailto:religionlaw->
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of mallamud
> Sent: Friday, August 16, 2013 4:49 PM
> To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
> Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
>
> Take the hypothetical of food stamps that cover the purchase of meat,
> including pork.  Could a kosher person or a Muslim who believes his religion
> does not permit eating pork sue successfully to compel the government to
> issue food stamps that do not permit their use to buy pork?  Wouldn't the
> answer be that the decision to buy pork is retained by the individual just as
> the insurance policy does not require anyone to obtain contraceptives, let
> alone use them.
>Jon
>
> On 2013-08-16 17:38, Volokh, Eugene wrote:
> > I still don't understand the rhetoric of "imposing on his daughters"
> > here. Plaintiff is entitled, as a benefit for himself because of his
> > employment, to coverage for his 18-year-old daughters as well as for
> > himself. But it's his choice; he is entirely free to say "Sorry, gals,
> > you're on your own now." Maybe that's unkind towards to his children,
> > but it'

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Ira Lupu]

Eugene and I agree that this legislator is not substantially burdened in
his religious freedom, because he is under no duty to buy a family policy.
 He can avoid the burden without the government penalizing him.
So he is in a different position than employers, like Hobby Lobby, who will
have to pay a penalty if they drop their health coverage of employees.

But the question of "imposing costs" on his daughters is not as simple as
Eugene and others seem to want to make it.  This is a classic baseline
problem.  If the baseline for the daughters is no insurance coverage, then
their father seems to want to make them better off (just not as well off as
he might).  But if the baseline is the full bundle of health services that
the United States has asserted should be guaranteed to women covered by a
policy that satisfies ACA, then the daughters are worse off, because their
father has asserted his religious freedom as a justification for talking
one essential (according to the government) item out of their bundle.

(Sometimes I think that what people see in these ACA cases is what they
want to see, but I suppose I am no more capable of escaping that tendency
than anyone else.)


On Fri, Aug 16, 2013 at 8:49 PM, Volokh, Eugene  wrote:

> I agree; as I wrote near the start of the thread, "I'm not
> sympathetic to the legislator's claim, and I'm not sure that the provision
> of only a general insurance policy and not the one with the exceptions
> substantially burdens the legislator's belief.  Indeed, the legislator's
> ability to send a disclaimer to the insurance carrier promising not to use
> certain services would, I think, suffice to eliminate any burden he might
> feel from having the policy.  Cf. Tony & Susan Alamo Foundation v.
> Secretary of Labor,
> http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged
> burden imposed by minimum wage law on employees who felt a religious duty
> to volunteer was eliminated by the possibility of just giving the money
> back)."
>
> But that's a very different argument from the argument that the
> legislator's seeking a narrower insurance policy is "imposing on his
> daughters."  The problem with his claim isn't that he's somehow denying his
> daughters something to which they're entitled, or that his conduct creates
> an externality.
>
> Eugene
>
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of mallamud
> > Sent: Friday, August 16, 2013 4:49 PM
> > To: religionlaw@lists.ucla.edu
> > Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
> >
> > Take the hypothetical of food stamps that cover the purchase of meat,
> > including pork.  Could a kosher person or a Muslim who believes his
> religion
> > does not permit eating pork sue successfully to compel the government to
> > issue food stamps that do not permit their use to buy pork?  Wouldn't the
> > answer be that the decision to buy pork is retained by the individual
> just as
> > the insurance policy does not require anyone to obtain contraceptives,
> let
> > alone use them.
> >Jon
> >
> > On 2013-08-16 17:38, Volokh, Eugene wrote:
> > > I still don't understand the rhetoric of "imposing on his daughters"
> > > here. Plaintiff is entitled, as a benefit for himself because of his
> > > employment, to coverage for his 18-year-old daughters as well as for
> > > himself. But it's his choice; he is entirely free to say "Sorry, gals,
> > > you're on your own now." Maybe that's unkind towards to his children,
> > > but it's not something that the law views as "imposing on his
> > > daughters the cost of medical insurance." Rather, it's "declining to
> > > give the daughters a gift [albeit a subsidized one] of medical
> > > insurance." (Incidentally, wouldn't he still have to pay for his
> > > daughters under many employer plans, which reasonably charge extra for
> > > extra insureds?) In this respect, it's very much like a parent's
> > > declining to pay for his adult children's college.
> > >
> > >  Now it's true that the plaintiff "wants it both ways," and maybe his
> > > employer shouldn't give him that option. But what I don't see is how
> > > his wanting it both ways is "imposing on his daughters" (at least
> > > assuming I'm right that leaving off the daughters entirely is

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I agree; as I wrote near the start of the thread, "I'm not sympathetic 
to the legislator's claim, and I'm not sure that the provision of only a 
general insurance policy and not the one with the exceptions substantially 
burdens the legislator's belief.  Indeed, the legislator's ability to send a 
disclaimer to the insurance carrier promising not to use certain services 
would, I think, suffice to eliminate any burden he might feel from having the 
policy.  Cf. Tony & Susan Alamo Foundation v. Secretary of Labor, 
http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged burden 
imposed by minimum wage law on employees who felt a religious duty to volunteer 
was eliminated by the possibility of just giving the money back)."

But that's a very different argument from the argument that the 
legislator's seeking a narrower insurance policy is "imposing on his 
daughters."  The problem with his claim isn't that he's somehow denying his 
daughters something to which they're entitled, or that his conduct creates an 
externality.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of mallamud
> Sent: Friday, August 16, 2013 4:49 PM
> To: religionlaw@lists.ucla.edu
> Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
> 
> Take the hypothetical of food stamps that cover the purchase of meat,
> including pork.  Could a kosher person or a Muslim who believes his religion
> does not permit eating pork sue successfully to compel the government to
> issue food stamps that do not permit their use to buy pork?  Wouldn't the
> answer be that the decision to buy pork is retained by the individual just as
> the insurance policy does not require anyone to obtain contraceptives, let
> alone use them.
>Jon
> 
> On 2013-08-16 17:38, Volokh, Eugene wrote:
> > I still don't understand the rhetoric of "imposing on his daughters"
> > here. Plaintiff is entitled, as a benefit for himself because of his
> > employment, to coverage for his 18-year-old daughters as well as for
> > himself. But it's his choice; he is entirely free to say "Sorry, gals,
> > you're on your own now." Maybe that's unkind towards to his children,
> > but it's not something that the law views as "imposing on his
> > daughters the cost of medical insurance." Rather, it's "declining to
> > give the daughters a gift [albeit a subsidized one] of medical
> > insurance." (Incidentally, wouldn't he still have to pay for his
> > daughters under many employer plans, which reasonably charge extra for
> > extra insureds?) In this respect, it's very much like a parent's
> > declining to pay for his adult children's college.
> >
> >  Now it's true that the plaintiff "wants it both ways," and maybe his
> > employer shouldn't give him that option. But what I don't see is how
> > his wanting it both ways is "imposing on his daughters" (at least
> > assuming I'm right that leaving off the daughters entirely isn't
> > "imposing" on them). It's just giving them a gift that is somewhat
> > less valuable than what they might want, and that what he might easily
> > give them (again, like paying for their Notre Dame education and not
> > their Princeton education). How is one adult's choice to give another
> > adult a slightly less valuable gift than he could have otherwise given
> > an "externality imposing event," at least if "externality imposing
> > event" is to have any meaning?
> >
> >  Eugene
> >
> > FROM: religionlaw-boun...@lists.ucla.edu
> > [mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Ira Lupu
> > SENT: Friday, August 16, 2013 2:18 PM
> > TO: Law & Religion issues for Law Academics
> > SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate
> >
> > The difference between the college scenario that Greg raises and the
> > health insurance scenario may be the universal entitlement to the
> > latter that the ACA creates. As others have said, the Missouri
> > plaintiff is not obligated to have a family health insurance policy,
> > nor is he obligated to include his children on his policy. But if he
> > left them off his policy entirely, they would have to buy health
> > insurance on their own.
> >
> > But this plaintiff wants it both ways. He wants the benefits (lower
> > premiums, information) of the f

RE: New Twist On Challenge to ACA Contraceptive Mandate

[mallamud]

Take the hypothetical of food stamps that cover the purchase of meat, 
including pork.  Could a kosher person or a Muslim who believes his 
religion does not permit eating pork sue successfully to compel the 
government to issue food stamps that do not permit their use to buy 
pork?  Wouldn't the answer be that the decision to buy pork is retained 
by the individual just as the insurance policy does not require anyone 
to obtain contraceptives, let alone use them.

  Jon

On 2013-08-16 17:38, Volokh, Eugene wrote:

I still don't understand the rhetoric of "imposing on his daughters"
here. Plaintiff is entitled, as a benefit for himself because of his
employment, to coverage for his 18-year-old daughters as well as for
himself. But it's his choice; he is entirely free to say "Sorry, 
gals,

you're on your own now." Maybe that's unkind towards to his children,
but it's not something that the law views as "imposing on his
daughters the cost of medical insurance." Rather, it's "declining to
give the daughters a gift [albeit a subsidized one] of medical
insurance." (Incidentally, wouldn't he still have to pay for his
daughters under many employer plans, which reasonably charge extra 
for

extra insureds?) In this respect, it's very much like a parent's
declining to pay for his adult children's college.

 Now it's true that the plaintiff "wants it both ways," and maybe his
employer shouldn't give him that option. But what I don't see is how
his wanting it both ways is "imposing on his daughters" (at least
assuming I'm right that leaving off the daughters entirely isn't
"imposing" on them). It's just giving them a gift that is somewhat
less valuable than what they might want, and that what he might 
easily

give them (again, like paying for their Notre Dame education and not
their Princeton education). How is one adult's choice to give another
adult a slightly less valuable gift than he could have otherwise 
given

an "externality imposing event," at least if "externality imposing
event" is to have any meaning?

 Eugene

FROM: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Ira Lupu
SENT: Friday, August 16, 2013 2:18 PM
TO: Law & Religion issues for Law Academics
SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate

The difference between the college scenario that Greg raises and the
health insurance scenario may be the universal entitlement to the
latter that the ACA creates. As others have said, the Missouri
plaintiff is not obligated to have a family health insurance policy,
nor is he obligated to include his children on his policy. But if he
left them off his policy entirely, they would have to buy health
insurance on their own.

But this plaintiff wants it both ways. He wants the benefits (lower
premiums, information) of the family policy for his non-minor
daughters, but he wants to exclude them from coverage of pregnancy
prevention services. It is that move -- keep the family policy
benefits for himself, while imposing on his daughters the separate
costs of pregnancy prevention services to which the daughters are
otherwise legally entitled -- that is the externality imposing event.

Cutter does not say all externalities are fatal -- it just says that
RLUIPA (and by implication, all RFRA's) should be construed with 
third
party costs in mind. In the Missouri case, the third party costs 
might

be sufficient to force a construction that denies the exemption.

Indeed, if courts are disabled from measuring the substantiality of
the burden, as many plaintiffs argue in these ACA cases, there is all
the more reason to let third party costs operate as a significant
check on exemption claims.

On Fri, Aug 16, 2013 at 4:08 PM, Douglas Laycock
 wrote:

This scenario is occasionally litigated, without the religious twist,
in bitter divorces. Dad refuses to help pay for college, or refuses
even to fill out the financial aid forms, and the courts say he
doesn't have to. The support obligation ends at 18.

That obviously doesn't fit with the realities or expectations of
middle class life, and I think a few states have changed it by
statute. But that's the background law that underlies this 
discussion.


Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA 22903

 434-243-8546 [2]

FROM: religionlaw-boun...@lists.ucla.edu [3]
[mailto:religionlaw-boun...@lists.ucla.edu [4]] ON BEHALF OF Sisk,
Gregory C.
SENT: Friday, August 16, 2013 3:55 PM

TO: 'Law & Religion issues for Law Academics'
SUBJECT: RE: New Twist On Challenge to ACA Contraceptive Mandate

I wonder how far some would be willing to take this proposition, 

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I still don't understand the rhetoric of "imposing on his 
daughters" here.  Plaintiff is entitled, as a benefit for himself because of 
his employment, to coverage for his 18-year-old daughters as well as for 
himself.  But it's his choice; he is entirely free to say "Sorry, gals, you're 
on your own now."  Maybe that's unkind towards to his children, but it's not 
something that the law views as "imposing on his daughters the cost of medical 
insurance."  Rather, it's "declining to give the daughters a gift [albeit a 
subsidized one] of medical insurance."  (Incidentally, wouldn't he still have 
to pay for his daughters under many employer plans, which reasonably charge 
extra for extra insureds?)  In this respect, it's very much like a parent's 
declining to pay for his adult children's college.

Now it's true that the plaintiff "wants it both ways," and 
maybe his employer shouldn't give him that option.  But what I don't see is how 
his wanting it both ways is "imposing on his daughters" (at least assuming I'm 
right that leaving off the daughters entirely isn't "imposing" on them).  It's 
just giving them a gift that is somewhat less valuable than what they might 
want, and that what he might easily give them (again, like paying for their 
Notre Dame education and not their Princeton education).  How is one adult's 
choice to give another adult a slightly less valuable gift than he could have 
otherwise given an "externality imposing event," at least if "externality 
imposing event" is to have any meaning?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 2:18 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

The difference between the college scenario that Greg raises and the health 
insurance scenario may be the universal entitlement to the latter that the ACA 
creates.  As others have said, the Missouri plaintiff is not obligated to have 
a family health insurance policy, nor is he obligated to include his children 
on his policy. But if he left them off his policy entirely, they would have to 
buy health insurance on their own.

But this plaintiff wants it both ways.  He wants the benefits (lower premiums, 
information) of the family policy for his non-minor daughters, but he wants to 
exclude them from coverage of pregnancy prevention services.  It is that move 
-- keep the family policy benefits for himself, while imposing on his daughters 
the separate costs of pregnancy prevention services to which the daughters are 
otherwise legally entitled -- that is the externality imposing event.

Cutter does not say all externalities are fatal -- it just says that RLUIPA 
(and by implication, all RFRA's) should be construed with third party costs in 
mind.  In the Missouri case, the third party costs might be sufficient to force 
a construction that denies the exemption.

Indeed, if courts are disabled from measuring the substantiality of the burden, 
as many plaintiffs argue in these ACA cases, there is all the more reason to 
let third party costs operate as a significant check on exemption claims.

On Fri, Aug 16, 2013 at 4:08 PM, Douglas Laycock 
mailto:dlayc...@virginia.edu>> wrote:
This scenario is occasionally litigated, without the religious twist, in bitter 
divorces. Dad refuses to help pay for college, or refuses even to fill out the 
financial aid forms, and the courts say he doesn't have to. The support 
obligation ends at 18.

That obviously doesn't fit with the realities or expectations of middle class 
life, and I think a few states have changed it by statute. But that's the 
background law that underlies this discussion.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
 434-243-8546

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>]
 On Behalf Of Sisk, Gregory C.
Sent: Friday, August 16, 2013 3:55 PM

To: 'Law & Religion issues for Law Academics'
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

I wonder how far some would be willing to take this proposition, that a 
parent's financial support for benefits to an adult child can rise to the level 
of coercion/leverage that if exercised with religious motivations could have 
constitutional implications.

Let me offer a different scenario, one in which the government's role is 
diminished but still very significant in the effect it plays on options:  
higher educat

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

Well, the Court wouldn’t have thought there was a compelled 
speech claim, if the money were used to pay for old-age homes rather than for 
political advocacy.  But that’s just because the compelled speech doctrine 
applies only to compelled exactions of money for speech purposes (and 
especially ideological speech).  Religious exemptions law, I think, can’t be so 
limited.

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 16, 2013 1:24 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

I appreciate Eugene’s referenced to Abood, which indeed is a trouble case.  Can 
it legitimately be restricted to its facts—i.e., the extraction of funds to pay 
for what everyone would recognize as taking “political” positions.  Would the 
Court have come out the same way if the funds were used, say, to provide for 
old-age homes for retired unionists?  I’m asking this as a genuine question, 
since it’s been years since I taught that set of cases.

sandy
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Re: New Twist On Challenge to ACA Contraceptive Mandate

[Ira Lupu]

The difference between the college scenario that Greg raises and the health
insurance scenario may be the universal entitlement to the latter that the
ACA creates.  As others have said, the Missouri plaintiff is not obligated
to have a family health insurance policy, nor is he obligated to include
his children on his policy. But if he left them off his policy entirely,
they would have to buy health insurance on their own.

But this plaintiff wants it both ways.  He wants the benefits (lower
premiums, information) of the family policy for his non-minor daughters,
but he wants to exclude them from coverage of pregnancy prevention
services.  It is that move -- keep the family policy benefits for himself,
while imposing on his daughters the separate costs of pregnancy prevention
services to which the daughters are otherwise legally entitled -- that is
the externality imposing event.

Cutter does not say all externalities are fatal -- it just says that RLUIPA
(and by implication, all RFRA's) should be construed with third party costs
in mind.  In the Missouri case, the third party costs might be sufficient
to force a construction that denies the exemption.

Indeed, if courts are disabled from measuring the substantiality of the
burden, as many plaintiffs argue in these ACA cases, there is all the more
reason to let third party costs operate as a significant check on exemption
claims.


On Fri, Aug 16, 2013 at 4:08 PM, Douglas Laycock wrote:

> This scenario is occasionally litigated, without the religious twist, in
> bitter divorces. Dad refuses to help pay for college, or refuses even to
> fill out the financial aid forms, and the courts say he doesn’t have to.
> The support obligation ends at 18.
>
> ** **
>
> That obviously doesn’t fit with the realities or expectations of middle
> class life, and I think a few states have changed it by statute. But that’s
> the background law that underlies this discussion.
>
> ** **
>
> Douglas Laycock
>
> Robert E. Scott Distinguished Professor of Law
>
> University of Virginia Law School
>
> 580 Massie Road
>
> Charlottesville, VA  22903
>
>  434-243-8546
>
> ** **
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Sisk, Gregory C.
> *Sent:* Friday, August 16, 2013 3:55 PM
>
> *To:* 'Law & Religion issues for Law Academics'
> *Subject:* RE: New Twist On Challenge to ACA Contraceptive Mandate
>
> ** **
>
> I wonder how far some would be willing to take this proposition, that a
> parent’s financial support for benefits to an adult child can rise to the
> level of coercion/leverage that if exercised with religious motivations
> could have constitutional implications.
>
> ** **
>
> Let me offer a different scenario, one in which the government’s role is
> diminished but still very significant in the effect it plays on options:
> higher education choices.
>
> ** **
>
> Suppose that Sue is graduating from high school at the age of 18.  She
> wants to go to college.  To be sure, no law requires a parent to finance an
> adult child’s college education.  But federal and state financial aid
> programs, as well as those of all colleges, will evaluate her need based on
> her parents’ income and assets.  If her parents have any substantial income
> and assets, Sue will be found to have little or no need, thus greatly
> restricting her ability to obtain grants and even loans on her own.
> Because she likely will have a low credit score, she will find it difficult
> to get significant educational loans in the private market, without a
> parent co-signing the loan.  In sum, her choices of where to attend to
> college are significantly restricted – perhaps even precluded altogether
> (in the near term at least) – unless her parents are willing to assist
> (which of course is the assumption underlying federal financial aid
> programs).
>
> ** **
>
> Now suppose that Sue has a great high school GPA, great test scores, and
> great extra-curriculars (and of course writes a very good admissions
> essay), resulting in her admission to both Princeton and Notre Dame.  For
> various reasons, Sue would like to go to Princeton.  But Sue’s parents, as
> committed Catholics, tell her they are willing to help pay for her to go to
> Notre Dame but will contribute nothing to help her attend Princeton.  As a
> practical matter, then, Princeton is off the table for Sue.  She can refuse
> to attend Notre Dame of course, but then she likely will have to cobble
> together funds from some source to attend the local public university – and
> even that lower cost institution may prove difficult or beyond reach for an
> adult child who, under federal, 

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Levinson, Sanford V]

I appreciate Eugene’s referenced to Abood, which indeed is a trouble case.  Can 
it legitimately be restricted to its facts—i.e., the extraction of funds to pay 
for what everyone would recognize as taking “political” positions.  Would the 
Court have come out the same way if the funds were used, say, to provide for 
old-age homes for retired unionists?  I’m asking this as a genuine question, 
since it’s been years since I taught that set of cases.

sandy
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RE: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Volokh, Eugene]

I agree with Ellis that the Free Exercise Clause shouldn't 
generally be read as mandating religious exemptions.  But the debate these days 
(at least on this blog) is usually not about the Free Exercise Clause but about 
RFRAs, which do involve legislatively created exemptions (albeit ones created 
in bulk rather than on a statute-by-state basis).  The ACA debate is mostly 
about the federal RFRA.  The Missouri legislator would, I assume, be claiming 
the protection of the Missouri RFRA.  And those statutes do seem to take the 
view that "the essence of religious freedom is that a person is not forced to 
choose between obeying their God and obeying their government" and "[t]hat's 
certainly at the heart of free exercise” as secured by the statutes, if not by 
the federal Free Exercise Clause.



Eugene



> -Original Message-

> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-

> boun...@lists.ucla.edu] On Behalf Of West, Ellis

> Sent: Friday, August 16, 2013 12:55 PM

> To: Law & Religion issues for Law Academics

> Subject: RE: Harmony and the freedom of religion (RE: New Twist On

> Challenge to ACA Contraceptive Mandate)

>

> I fear that many of you will think I am pompous, if not arrogant, in saying

> what follows, but I feel compelled to respond to Brad Pardee's post.  For

> years now, I have been reading all the posts on this blog, most of which have

> dealt with the issue of when, on the basis of religious liberty, persons have 
> a

> right to be exempt from having to obey valid secular that persons generally

> have to obey.  Recently, I find myself just shaking my head, because the

> debate goes on and on, and will continue to do so, because there is simply no

> clear answer to the question.  The sad thing about the debate is that as it 
> has

> been structured, it is so unnecessary.  Of course, if legislatures want to

> exempt certain persons from certain laws on the basis of certain criteria, 
> that

> is their prerogative.  The debate on this blog, however, has been based on

> the assumption that religious freedom, at least under certain circumstances,

> gives persons a right to be exempt from obeying valid civil laws.  More

> specifically, too many entries assume, along with Brad, that "the essence of

> religious freedom is that a person is not forced to choose between obeying

> their God and obeying their government" and "[t]hat's certainly at the heart

> of free exercise."

>

> If, however, Brad is referring to the free exercise of religion guaranteed in

> the First Amendment, then his understanding of religious freedom is way off

> base.  Based on a thorough review of the historical evidence, I am finishing a

> book on the original meaning of the free exercise clause, and I have yet to

> find any early American advocate of religious liberty, except for some

> Quakers, who understood it as meaning that persons could not be forced to

> choose between obeying their God and obeying their government.  (There

> may be such persons, but I have not found them.)  The issue of religion-

> based exemptions from valid laws was simply not on their minds, and they

> did not address it explicitly.  Rather the all-consuming issue was that of

> establishments of religion, and freedom of religion meant freedom from

> such establishments and all laws associated with them, i.e., freedom from

> laws whose primary purpose was to favor one religion, religious belief or

> practice, over another or to discriminate for and against persons because of

> their religion.  Stated differently, the no establishment and free exercise

> clauses were simply two different ways of saying the same thing.  To the

> extent that early Americans implicitly addressed the issue, they emphasized

> that religion could not be used as an excuse for obeying valid civil laws.  
> Only

> some Quakers would have agreed with Brad's understanding of religious

> freedom, but as I showed years ago in an article in the Journal of Law and

> Religion, when they attempted to get Pennsylvania to add a provision to its

> constitution that would reflect their understanding, it was rejected.  
> Finally,

> contrary to what Brad says, the philosophy behind religious freedom is not

> the same as the philosophy behind conscientious objection.  The former

> pertains to what the government should not do, whereas the latter pertains

> to whether an individual should follow his conscience regardless of what

> others, including the government, may do to him or her.

>

> Ellis M. West

> Emeritus Professor of Political Science University of Richmond, VA 23173

> 804-289-8536

> ew...@richmond.edu<mailto:ew.

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I appreciate Sandy’s point, and as one of the few people who 
thinks the unanimous Abood decision was unanimously mistaken, I would take it 
quite a distance.

Nonetheless, Abood illustrates, I think, that even in the Free 
Speech Clause context the law distinguishes between having to pay for something 
out of something that is recognizably “your own” than out of something that has 
gone through the public fisc.  If that’s a line that nine Justices were willing 
to draw as a constitutional mandate, I would think that a similar line would be 
quite reasonable for a religious observer to draw as a matter of religious 
belief (especially given the very wide tolerance that Thomas establishes for 
such lines).  So whether Sandy or I think that there’s a sensible line between 
an objection to funding of contraception on “my own” insurance policy and a 
funding of the military -- or for that matter of contraception -- through 
taxes, I don’t see how I can object as a legal matter to someone’s drawing such 
a line.

I should say the same as to weapons as to contraception, of 
course.  If a government agency mandated that all employees contribute some 
portion of their paychecks to hiring armed guards for the community in which 
they live, I would think that an extreme pacifist who objected not just to use 
of violence but also to funding of violence could bring a plausible RFRA claim 
-- even if we would reject, whether on a substantial burden theory or a 
compelling interest theory, the pacifist’s objection to the government’s hiring 
the police using general tax dollars.  Or am I mistaken on this?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V
Sent: Friday, August 16, 2013 7:56 AM
To: Law & Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate


I know this point has been made literally dozens of times before, but I 
continue to be unable to ascertain the difference between “government-mandated 
funding of contraception” and government-mandated funding of brutal weapons of 
mass destruction or the training by the United States of personnel who are 
enabled to engage in the regular violation of at least that part of the United 
Nations Treaty, which we have ratified, that prohibits the infliction of 
“Degrading and Inhumane Acts” as well as “torture.”  It is an (unfortunate) 
necessity of life in any government based on other than unanimous consents that 
losers will be upset by legislation endorsed by winners.  Unlike Marci, I 
remain sympathetic to RFRA because I can understand claims that, for example, 
one should not be forced to work on one’s Sabbath as a condition to receive 
state benefits and the like.

Jean Bethke Elshtain, a wonderful scholar and a good friend, has just died.  
She had an essay in a book that I edited, Torture:  A Collection, in which she 
cautioned against too quick to describe as  “torture” all methods of 
interrogation that we find problematic.  An obvious problem with such overreach 
is that it tends to discredit the general argument against “torture.”  The 
obvious analogue, for me at least, is that claims that the Constitution, 
correctly understood, should protect the claim against paying for insurance 
that is broader than one would like.  As a matter of fact, Marci speaks 
eloquently of the substantive issues that are raised, but that may simply be 
evidence that I agree with her.  As suggested by my initial example, there are 
lots of features of contemporary US military policy that appall me, but I still 
can’t summon up an argument that I should be free from paying taxes, even if 
I’d be open to overturning the Court’s decision many years ago against allowing 
“selective conscientious objection.”  That, after all, required quite literally 
conscripting the body.  But conscripting one’s money is precisely what any and 
all governments do, without exception.  Unless someone claims that it is 
unconstitutional for the state to require anyone to help finance 
contraception—in the way that I at least think it is unconstitutional to 
require anyone to pay religious ministers (save, of course, for chaplains, 
which illustrates how things get more complicated when we wrestle with the real 
world), then I remain (almost) totally unsympathetic.

I apologize for the total unoriginality of these arguments, but, alas, we seem 
to return to the same issues over and over, with, quite obviously, no one 
convincing anyone on the “other side.”

sandy




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RE: New Twist On Challenge to ACA Contraceptive Mandate

[Douglas Laycock]

This scenario is occasionally litigated, without the religious twist, in
bitter divorces. Dad refuses to help pay for college, or refuses even to
fill out the financial aid forms, and the courts say he doesn't have to. The
support obligation ends at 18.

 

That obviously doesn't fit with the realities or expectations of middle
class life, and I think a few states have changed it by statute. But that's
the background law that underlies this discussion.

 

Douglas Laycock

Robert E. Scott Distinguished Professor of Law

University of Virginia Law School

580 Massie Road

Charlottesville, VA  22903

 434-243-8546

 

From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C.
Sent: Friday, August 16, 2013 3:55 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

 

I wonder how far some would be willing to take this proposition, that a
parent's financial support for benefits to an adult child can rise to the
level of coercion/leverage that if exercised with religious motivations
could have constitutional implications.

 

Let me offer a different scenario, one in which the government's role is
diminished but still very significant in the effect it plays on options:
higher education choices.

 

Suppose that Sue is graduating from high school at the age of 18.  She wants
to go to college.  To be sure, no law requires a parent to finance an adult
child's college education.  But federal and state financial aid programs, as
well as those of all colleges, will evaluate her need based on her parents'
income and assets.  If her parents have any substantial income and assets,
Sue will be found to have little or no need, thus greatly restricting her
ability to obtain grants and even loans on her own.  Because she likely will
have a low credit score, she will find it difficult to get significant
educational loans in the private market, without a parent co-signing the
loan.  In sum, her choices of where to attend to college are significantly
restricted - perhaps even precluded altogether (in the near term at least) -
unless her parents are willing to assist (which of course is the assumption
underlying federal financial aid programs).

 

Now suppose that Sue has a great high school GPA, great test scores, and
great extra-curriculars (and of course writes a very good admissions essay),
resulting in her admission to both Princeton and Notre Dame.  For various
reasons, Sue would like to go to Princeton.  But Sue's parents, as committed
Catholics, tell her they are willing to help pay for her to go to Notre Dame
but will contribute nothing to help her attend Princeton.  As a practical
matter, then, Princeton is off the table for Sue.  She can refuse to attend
Notre Dame of course, but then she likely will have to cobble together funds
from some source to attend the local public university - and even that lower
cost institution may prove difficult or beyond reach for an adult child who,
under federal, state, and college financial aid parameters, is regarded as
having no need.

 

Remembering that the provision of financial aid by the federal and state
governments, with set parameters based on parent financial resources, plays
a significant role in creating this dilemma for Sue.  Does that mean that
her parents' decision somehow transgresses constitutional limitations
regarding interaction with religion?  And remember as well that Sue's
parents could always have chosen not to provide her with aid to any college,
Princeton, Notre Dame, or State U (just as a parent has no legal obligation
to offer any health insurance benefits for an adult child).  Or is this
hypothetical wholly lacking in adequate analogies to the health insurance
scenario?

 

Greg

 

Gregory Sisk

Laghi Distinguished Chair in Law

University of St. Thomas School of Law (Minnesota)

MSL 400, 1000 LaSalle Avenue

Minneapolis, MN  55403-2005

651-962-4923

gcs...@stthomas.edu <mailto:gcs...@stthomas.edu> 

http://personal.stthomas.edu/GCSISK/sisk.html
<http://personal2.stthomas.edu/GCSISK/sisk.html> 

Publications:  http://ssrn.com/author=44545

 

___
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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: New Twist On Challenge to ACA Contraceptive Mandate

[Levinson, Sanford V]

I know this point has been made literally dozens of times before, but I 
continue to be unable to ascertain the difference between “government-mandated 
funding of contraception” and government-mandated funding of brutal weapons of 
mass destruction or the training by the United States of personnel who are 
enabled to engage in the regular violation of at least that part of the United 
Nations Treaty, which we have ratified, that prohibits the infliction of 
“Degrading and Inhumane Acts” as well as “torture.”  It is an (unfortunate) 
necessity of life in any government based on other than unanimous consents that 
losers will be upset by legislation endorsed by winners.  Unlike Marci, I 
remain sympathetic to RFRA because I can understand claims that, for example, 
one should not be forced to work on one’s Sabbath as a condition to receive 
state benefits and the like.

Jean Bethke Elshtain, a wonderful scholar and a good friend, has just died.  
She had an essay in a book that I edited, Torture:  A Collection, in which she 
cautioned against too quick to describe as  “torture” all methods of 
interrogation that we find problematic.  An obvious problem with such overreach 
is that it tends to discredit the general argument against “torture.”  The 
obvious analogue, for me at least, is that claims that the Constitution, 
correctly understood, should protect the claim against paying for insurance 
that is broader than one would like.  As a matter of fact, Marci speaks 
eloquently of the substantive issues that are raised, but that may simply be 
evidence that I agree with her.  As suggested by my initial example, there are 
lots of features of contemporary US military policy that appall me, but I still 
can’t summon up an argument that I should be free from paying taxes, even if 
I’d be open to overturning the Court’s decision many years ago against allowing 
“selective conscientious objection.”  That, after all, required quite literally 
conscripting the body.  But conscripting one’s money is precisely what any and 
all governments do, without exception.  Unless someone claims that it is 
unconstitutional for the state to require anyone to help finance 
contraception—in the way that I at least think it is unconstitutional to 
require anyone to pay religious ministers (save, of course, for chaplains, 
which illustrates how things get more complicated when we wrestle with the real 
world), then I remain (almost) totally unsympathetic.

I apologize for the total unoriginality of these arguments, but, alas, we seem 
to return to the same issues over and over, with, quite obviously, no one 
convincing anyone on the “other side.”

sandy




___
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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: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[West, Ellis]

I fear that many of you will think I am pompous, if not arrogant, in saying 
what follows, but I feel compelled to respond to Brad Pardee's post.  For years 
now, I have been reading all the posts on this blog, most of which have dealt 
with the issue of when, on the basis of religious liberty, persons have a right 
to be exempt from having to obey valid secular that persons generally have to 
obey.  Recently, I find myself just shaking my head, because the debate goes on 
and on, and will continue to do so, because there is simply no clear answer to 
the question.  The sad thing about the debate is that as it has been 
structured, it is so unnecessary.  Of course, if legislatures want to exempt 
certain persons from certain laws on the basis of certain criteria, that is 
their prerogative.  The debate on this blog, however, has been based on the 
assumption that religious freedom, at least under certain circumstances, gives 
persons a right to be exempt from obeying valid civil laws.  More specifically, 
too many entries assume, along with Brad, that "the essence of religious 
freedom is that a person is not forced to choose between obeying their God and 
obeying their government" and "[t]hat's certainly at the heart of free 
exercise."

If, however, Brad is referring to the free exercise of religion guaranteed in 
the First Amendment, then his understanding of religious freedom is way off 
base.  Based on a thorough review of the historical evidence, I am finishing a 
book on the original meaning of the free exercise clause, and I have yet to 
find any early American advocate of religious liberty, except for some Quakers, 
who understood it as meaning that persons could not be forced to choose between 
obeying their God and obeying their government.  (There may be such persons, 
but I have not found them.)  The issue of religion-based exemptions from valid 
laws was simply not on their minds, and they did not address it explicitly.  
Rather the all-consuming issue was that of establishments of religion, and 
freedom of religion meant freedom from such establishments and all laws 
associated with them, i.e., freedom from laws whose primary purpose was to 
favor one religion, religious belief or practice, over another or to 
discriminate for and against persons because of their religion.  Stated 
differently, the no establishment and free exercise clauses were simply two 
different ways of saying the same thing.  To the extent that early Americans 
implicitly addressed the issue, they emphasized that religion could not be used 
as an excuse for obeying valid civil laws.  Only some Quakers would have agreed 
with Brad's understanding of religious freedom, but as I showed years ago in an 
article in the Journal of Law and Religion, when they attempted to get 
Pennsylvania to add a provision to its constitution that would reflect their 
understanding, it was rejected.  Finally, contrary to what Brad says, the 
philosophy behind religious freedom is not the same as the philosophy behind 
conscientious objection.  The former pertains to what the government should not 
do, whereas the latter pertains to whether an individual should follow his 
conscience regardless of what others, including the government, may do to him 
or her.

Ellis M. West
Emeritus Professor of Political Science 
University of Richmond, VA 23173
804-289-8536
ew...@richmond.edu

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brad Pardee
Sent: Friday, August 16, 2013 2:36 PM
To: 'Law & Religion issues for Law Academics'
Subject: Harmony and the freedom of religion (RE: New Twist On Challenge to ACA 
Contraceptive Mandate)

I'm not certain that this is a correct understanding of the purpose of freedom 
of religion.  It's always been my understanding that the essence of religious 
freedom is that a person is not forced to choose between obeying their God and 
obeying their government.  That's certainly at the heart of free exercise, 
where the government ought not to have a blank check to command what God 
prohibits or to prohibit what God commands.  (It’s the same philosophy behind 
conscientious object legislation, where it's a matter of personal conscience 
rather than God that is involved.)

It has its limitations, just as freedom of speech does not protect slander, 
libel, or the proverbial "yelling fire in a crowded theater".  There are 
certainly instances where it is truly necessary to compel a person to act in a 
certain way, even if it is in violation of the tenets of their faith, but that 
won't be the case in every instance just because the legislature wants it to be 
so.  At any rate, though, I believe that this is the purpose of religious 
freedom.  Ideally, people who disagree with one another can choose to live in 
harmony with each other, whether the disagreement is a

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Sisk, Gregory C.]

I wonder how far some would be willing to take this proposition, that a 
parent's financial support for benefits to an adult child can rise to the level 
of coercion/leverage that if exercised with religious motivations could have 
constitutional implications.

Let me offer a different scenario, one in which the government's role is 
diminished but still very significant in the effect it plays on options:  
higher education choices.

Suppose that Sue is graduating from high school at the age of 18.  She wants to 
go to college.  To be sure, no law requires a parent to finance an adult 
child's college education.  But federal and state financial aid programs, as 
well as those of all colleges, will evaluate her need based on her parents' 
income and assets.  If her parents have any substantial income and assets, Sue 
will be found to have little or no need, thus greatly restricting her ability 
to obtain grants and even loans on her own.  Because she likely will have a low 
credit score, she will find it difficult to get significant educational loans 
in the private market, without a parent co-signing the loan.  In sum, her 
choices of where to attend to college are significantly restricted - perhaps 
even precluded altogether (in the near term at least) - unless her parents are 
willing to assist (which of course is the assumption underlying federal 
financial aid programs).

Now suppose that Sue has a great high school GPA, great test scores, and great 
extra-curriculars (and of course writes a very good admissions essay), 
resulting in her admission to both Princeton and Notre Dame.  For various 
reasons, Sue would like to go to Princeton.  But Sue's parents, as committed 
Catholics, tell her they are willing to help pay for her to go to Notre Dame 
but will contribute nothing to help her attend Princeton.  As a practical 
matter, then, Princeton is off the table for Sue.  She can refuse to attend 
Notre Dame of course, but then she likely will have to cobble together funds 
from some source to attend the local public university - and even that lower 
cost institution may prove difficult or beyond reach for an adult child who, 
under federal, state, and college financial aid parameters, is regarded as 
having no need.

Remembering that the provision of financial aid by the federal and state 
governments, with set parameters based on parent financial resources, plays a 
significant role in creating this dilemma for Sue.  Does that mean that her 
parents' decision somehow transgresses constitutional limitations regarding 
interaction with religion?  And remember as well that Sue's parents could 
always have chosen not to provide her with aid to any college, Princeton, Notre 
Dame, or State U (just as a parent has no legal obligation to offer any health 
insurance benefits for an adult child).  Or is this hypothetical wholly lacking 
in adequate analogies to the health insurance scenario?

Greg

Gregory Sisk
Laghi Distinguished Chair in Law
University of St. Thomas School of Law (Minnesota)
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN  55403-2005
651-962-4923
gcs...@stthomas.edu
http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html>
Publications:  http://ssrn.com/author=44545

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, August 16, 2013 1:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

There's much to what Chip says in general.  But, as applied, I 
wonder.  If refusing to support your adult child is an "externality," then 
nearly everything becomes an externality.  (Incidentally, does the ACA even 
purport to legally require parents to include adult children under their 
policy?  If a parent is legally entitled to just not include an 18-year-old on 
his insurance, how is it an "externality" on the 18-year-old if the parent 
seeks a less than full policy?)  If we have gotten to the point that adult A's 
refusal to include adult B under a benefit plan that adult A has earned as part 
of his job is a "fine imposed" on B, then I wonder how the 
externality/nonexternality distinction can really be made to work.

Incidentally, it seems to me -- despite the Court's disclaimer 
in Sherbert -- people in Sherbert's shoes do impose an external cost on others, 
either taxpayers or on their former employers, who have to pay more in 
unemployment insurance as a result of the claims.  That's one reason I think 
Sherbert was wrong, but, again, that's the law.

Eugene

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 11:07 AM
To: Law & Religion 

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

There's much to what Chip says in general.  But, as applied, I 
wonder.  If refusing to support your adult child is an "externality," then 
nearly everything becomes an externality.  (Incidentally, does the ACA even 
purport to legally require parents to include adult children under their 
policy?  If a parent is legally entitled to just not include an 18-year-old on 
his insurance, how is it an "externality" on the 18-year-old if the parent 
seeks a less than full policy?)  If we have gotten to the point that adult A's 
refusal to include adult B under a benefit plan that adult A has earned as part 
of his job is a "fine imposed" on B, then I wonder how the 
externality/nonexternality distinction can really be made to work.

Incidentally, it seems to me -- despite the Court's disclaimer 
in Sherbert -- people in Sherbert's shoes do impose an external cost on others, 
either taxpayers or on their former employers, who have to pay more in 
unemployment insurance as a result of the claims.  That's one reason I think 
Sherbert was wrong, but, again, that's the law.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 11:07 AM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Cutter v. Wilkinson, and other Establishment Clause decisions (e.g., Caldor) 
teach that statutory accommodations of religion should be construed with an eye 
toward possible negative externalities of the particular acommodation sought.  
Would accommodation of this Missouri legislator, and other similar objectors, 
cause such externalities?  Perhaps on employers and insurance companies, who 
would have to tailor policies to satisfy the (various) religious objections of 
policy-holders?  In this particular case, accommodation seems to impose 
negative externalities on the 18 and 19 year-old daughters of the legislator.  
The ACA permits them to remain on their parents' policy until age 26, and a 
separate policy for each of them may well cost them more (it will cost them 
something) than some sort of fair share contribution to their father's policy, 
if he asks for that.  And the ACA, as administered, creates an entitlement to 
pregnancy prevention services (no co-pays, no deductibles) for those women 
covered by its terms.  So accommodating this Missouri legislator looks like a 
"fine imposed" (cf. Sherbert) on the daughters as a result of their father's 
religious preferences.  That's not a religious burden, but if a lost 
entitlement can qualify as a religious burden, can't it likewise qualify as a 
burden on the reproductive freedom of those who must bear the resulting cost of 
pregnancy prevention services?

On Fri, Aug 16, 2013 at 1:17 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
I'm still not sure I understand.  This is plaintiff's insurance, which 
he either has to pay for or which is provided as a perk of his job.  How is he 
an "officious intermeddler" under such circumstances?  He's not going into 
court to seek an injunction barring an 18-year-old from getting something using 
the 18-year-old's own money.  He's seeking to control the insurance that comes 
as a result of his employment.  (Whether he's acting rightly or not is an 
interesting question -- I'm inclined to not be sympathetic to him as an ethical 
matter -- but I'm speaking here of the legal question.)

I agree, by the way, that the RFRA choice of an across-the-board 
compelling interest test was a mistake, and have said as much in print, 
http://www.law.ucla.edu/volokh/relfree.htm (Part II).  But it's there.

Eugene

> -Original Message-
> From: 
> religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
> [mailto:religionlaw-<mailto:religionlaw->
> boun...@lists.ucla.edu<mailto:boun...@lists.ucla.edu>] On Behalf Of mallamud
> Sent: Friday, August 16, 2013 9:16 AM
> To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
> Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
>
> One problem,in my opinion, is that RFRA mandates a compelling interest test
> in areas unsuited to it.  Regulation of employment and insurance coverage
> falls within the province of the legislature, and while I am worried about
> limits on freedom when the legislature gets too involved, this is not at issue
> in this case.  Legally, I agree with the suggestion that the suit should be
> dismissed on standing grounds.  But from a common sense point of view the
> provision of a benefit in circumstances in which you must affirmatively take
> additional action to receive the b

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Scarberry, Mark]

That's one reason why I suggested it may matter whether family members all 
agree, and that it could be possible for the state to offer the 18 and 19 
year-old daughters a waiver of coverage, to accommodate the family's concerns.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Friday, August 16, 2013 11:07 AM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Cutter v. Wilkinson, and other Establishment Clause decisions (e.g., Caldor) 
teach that statutory accommodations of religion should be construed with an eye 
toward possible negative externalities of the particular acommodation sought.  
Would accommodation of this Missouri legislator, and other similar objectors, 
cause such externalities?  Perhaps on employers and insurance companies, who 
would have to tailor policies to satisfy the (various) religious objections of 
policy-holders?  In this particular case, accommodation seems to impose 
negative externalities on the 18 and 19 year-old daughters of the legislator.  
The ACA permits them to remain on their parents' policy until age 26, and a 
separate policy for each of them may well cost them more (it will cost them 
something) than some sort of fair share contribution to their father's policy, 
if he asks for that.  And the ACA, as administered, creates an entitlement to 
pregnancy prevention services (no co-pays, no deductibles) for those women 
covered by its terms.  So accommodating this Missouri legislator looks like a 
"fine imposed" (cf. Sherbert) on the daughters as a result of their father's 
religious preferences.  That's not a religious burden, but if a lost 
entitlement can qualify as a religious burden, can't it likewise qualify as a 
burden on the reproductive freedom of those who must bear the resulting cost of 
pregnancy prevention services?

On Fri, Aug 16, 2013 at 1:17 PM, Volokh, Eugene 
mailto:vol...@law.ucla.edu>> wrote:
I'm still not sure I understand.  This is plaintiff's insurance, which 
he either has to pay for or which is provided as a perk of his job.  How is he 
an "officious intermeddler" under such circumstances?  He's not going into 
court to seek an injunction barring an 18-year-old from getting something using 
the 18-year-old's own money.  He's seeking to control the insurance that comes 
as a result of his employment.  (Whether he's acting rightly or not is an 
interesting question -- I'm inclined to not be sympathetic to him as an ethical 
matter -- but I'm speaking here of the legal question.)

I agree, by the way, that the RFRA choice of an across-the-board 
compelling interest test was a mistake, and have said as much in print, 
http://www.law.ucla.edu/volokh/relfree.htm (Part II).  But it's there.

Eugene
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Harmony and the freedom of religion (RE: New Twist On Challenge to ACA Contraceptive Mandate)

[Brad Pardee]

I'm not certain that this is a correct understanding of the purpose of freedom 
of religion.  It's always been my understanding that the essence of religious 
freedom is that a person is not forced to choose between obeying their God and 
obeying their government.  That's certainly at the heart of free exercise, 
where the government ought not to have a blank check to command what God 
prohibits or to prohibit what God commands.  (It’s the same philosophy behind 
conscientious object legislation, where it's a matter of personal conscience 
rather than God that is involved.)

It has its limitations, just as freedom of speech does not protect slander, 
libel, or the proverbial "yelling fire in a crowded theater".  There are 
certainly instances where it is truly necessary to compel a person to act in a 
certain way, even if it is in violation of the tenets of their faith, but that 
won't be the case in every instance just because the legislature wants it to be 
so.  At any rate, though, I believe that this is the purpose of religious 
freedom.  Ideally, people who disagree with one another can choose to live in 
harmony with each other, whether the disagreement is a matter of religion, 
economics, foreign policy, or whose team is best positioned to win the Super 
Bowl, but I don't think that harmony is the driving purpose behind religious 
freedom.

Brad

-Original Message-
From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud
Sent: Friday, August 16, 2013 11:16 AM
To: religionlaw@lists.ucla.edu
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

Freedom of religion should promote harmony.  Live and let live.  It should not 
provide religious people with the ability to interfere with the provision of 
benefits to those who do not share the same views.  This is a classic case of 
an officious intermeddler trying to cause trouble because of personal 
sensitivities.  Even were he to have a right, I think this is a case where it 
is not right to assert it.  Even if he would be satisfied with a judicially 
mandated provision in the policy excluding coverage for anyone with religious 
objections to it, it is just wasting money and causing trouble.  Religious 
people should not interfere with benefits given to people who do not share 
their beliefs and if RFRA really gives them the option to do so, RFRA is not 
furthering the harmony religious freedom should promote.



___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: New Twist On Challenge to ACA Contraceptive Mandate

[Ira Lupu]

Cutter v. Wilkinson, and other Establishment Clause decisions (e.g.,
Caldor) teach that statutory accommodations of religion should be construed
with an eye toward possible negative externalities of the particular
acommodation sought.  Would accommodation of this Missouri legislator, and
other similar objectors, cause such externalities?  Perhaps on employers
and insurance companies, who would have to tailor policies to satisfy the
(various) religious objections of policy-holders?  In this particular case,
accommodation seems to impose negative externalities on the 18 and 19
year-old daughters of the legislator.  The ACA permits them to remain on
their parents' policy until age 26, and a separate policy for each of them
may well cost them more (it will cost them something) than some sort of
fair share contribution to their father's policy, if he asks for that.  And
the ACA, as administered, creates an entitlement to pregnancy prevention
services (no co-pays, no deductibles) for those women covered by its terms.
 So accommodating this Missouri legislator looks like a "fine imposed" (cf.
Sherbert) on the daughters as a result of their father's religious
preferences.  That's not a religious burden, but if a lost entitlement can
qualify as a religious burden, can't it likewise qualify as a burden on the
reproductive freedom of those who must bear the resulting cost of pregnancy
prevention services?


On Fri, Aug 16, 2013 at 1:17 PM, Volokh, Eugene  wrote:

> I'm still not sure I understand.  This is plaintiff's insurance,
> which he either has to pay for or which is provided as a perk of his job.
>  How is he an "officious intermeddler" under such circumstances?  He's not
> going into court to seek an injunction barring an 18-year-old from getting
> something using the 18-year-old's own money.  He's seeking to control the
> insurance that comes as a result of his employment.  (Whether he's acting
> rightly or not is an interesting question -- I'm inclined to not be
> sympathetic to him as an ethical matter -- but I'm speaking here of the
> legal question.)
>
> I agree, by the way, that the RFRA choice of an across-the-board
> compelling interest test was a mistake, and have said as much in print,
> http://www.law.ucla.edu/volokh/relfree.htm (Part II).  But it's there.
>
> Eugene
>
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of mallamud
> > Sent: Friday, August 16, 2013 9:16 AM
> > To: religionlaw@lists.ucla.edu
> > Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
> >
> > One problem,in my opinion, is that RFRA mandates a compelling interest
> test
> > in areas unsuited to it.  Regulation of employment and insurance coverage
> > falls within the province of the legislature, and while I am worried
> about
> > limits on freedom when the legislature gets too involved, this is not at
> issue
> > in this case.  Legally, I agree with the suggestion that the suit should
> be
> > dismissed on standing grounds.  But from a common sense point of view the
> > provision of a benefit in circumstances in which you must affirmatively
> take
> > additional action to receive the benefit should not be considered to
> impinge
> > on the religious views of people who believe they should not have the
> > benefit.  Just do not use it.  The policy with contraceptive coverage
> does not
> > force the potential beneficiary to do anything and therefore should not
> be
> > considered to affect his religious views, nor does it force his
> daughters to
> > take advantage of it.
> >
> > Freedom of religion should promote harmony.  Live and let live.  It
> should not
> > provide religious people with the ability to interfere with the
> provision of
> > benefits to those who do not share the same views.
> > This is a classic case of an officious intermeddler trying to cause
> trouble
> > because of personal sensitivities.  Even were he to have a right, I
> think this is
> > a case where it is not right to assert it.  Even if he would be
> satisfied with a
> > judicially mandated provision in the policy excluding coverage for anyone
> > with religious objections to it, it is just wasting money and causing
> trouble.
> > Religious people should not interfere with benefits given to people who
> do
> > not share their beliefs and if RFRA really gives them the option to do
> so, RFRA
> > is not furthering the harmony religious freedom should promote.
> >
> > Jon
> >
> > On 20

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I'm still not sure I understand.  This is plaintiff's insurance, which 
he either has to pay for or which is provided as a perk of his job.  How is he 
an "officious intermeddler" under such circumstances?  He's not going into 
court to seek an injunction barring an 18-year-old from getting something using 
the 18-year-old's own money.  He's seeking to control the insurance that comes 
as a result of his employment.  (Whether he's acting rightly or not is an 
interesting question -- I'm inclined to not be sympathetic to him as an ethical 
matter -- but I'm speaking here of the legal question.)

I agree, by the way, that the RFRA choice of an across-the-board 
compelling interest test was a mistake, and have said as much in print, 
http://www.law.ucla.edu/volokh/relfree.htm (Part II).  But it's there.

Eugene

> -Original Message-
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of mallamud
> Sent: Friday, August 16, 2013 9:16 AM
> To: religionlaw@lists.ucla.edu
> Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
> 
> One problem,in my opinion, is that RFRA mandates a compelling interest test
> in areas unsuited to it.  Regulation of employment and insurance coverage
> falls within the province of the legislature, and while I am worried about
> limits on freedom when the legislature gets too involved, this is not at issue
> in this case.  Legally, I agree with the suggestion that the suit should be
> dismissed on standing grounds.  But from a common sense point of view the
> provision of a benefit in circumstances in which you must affirmatively take
> additional action to receive the benefit should not be considered to impinge
> on the religious views of people who believe they should not have the
> benefit.  Just do not use it.  The policy with contraceptive coverage does not
> force the potential beneficiary to do anything and therefore should not be
> considered to affect his religious views, nor does it force his daughters to
> take advantage of it.
> 
> Freedom of religion should promote harmony.  Live and let live.  It should not
> provide religious people with the ability to interfere with the provision of
> benefits to those who do not share the same views.
> This is a classic case of an officious intermeddler trying to cause trouble
> because of personal sensitivities.  Even were he to have a right, I think 
> this is
> a case where it is not right to assert it.  Even if he would be satisfied 
> with a
> judicially mandated provision in the policy excluding coverage for anyone
> with religious objections to it, it is just wasting money and causing trouble.
> Religious people should not interfere with benefits given to people who do
> not share their beliefs and if RFRA really gives them the option to do so, 
> RFRA
> is not furthering the harmony religious freedom should promote.
> 
> Jon
> 
> On 2013-08-16 07:41, Friedman, Howard M. wrote:
> > Eugene--
> >
> > You are right that there is no obligation for you to furnish them
> > insurance. But under the ACA individual mandate, the children are
> > required to have insurance that includes certain women's health care
> > coverage or else pay a penalty. And we have set up a system where it
> > is much cheaper to keep children on their parents' employer-provided
> > group policy than having the children buy policies in the individual
> > market (assuming they do not have employer-provided insurance). So we
> > have set up a system with all kinds of economic incentives that
> > effectively pushes children who are not employed to stay on their
> > parents' policy-- here one (if the suit is successful) in which the
> > father is effectively imposing a religious objection on his grown
> > children. He can presumably do that for minor children, but not
> > adults.
> >
> > Howard
> >
> > -------------
> >
> > FROM: religionlaw-boun...@lists.ucla.edu
> > [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
> > [vol...@law.ucla.edu]
> >  SENT: Thursday, August 15, 2013 11:33 PM
> >  TO: Law & Religion issues for Law Academics
> > (religionlaw@lists.ucla.edu)
> >  SUBJECT: RE: New Twist On Challenge to ACA Contraceptive Mandate
> >
> >  This might just be my ignorance of the ACA, but I’m puzzled: How is a
> > father “deny[ing] his 18 and 19 year old daughters on his insurance
> > policy coverage for contraception” by insisting that any such policy
> > not have such coverage?
> >
> > I had assumed that once

RE: New Twist On Challenge to ACA Contraceptive Mandate

[mallamud]

One problem,in my opinion, is that RFRA mandates a compelling interest 
test in areas unsuited to it.  Regulation of employment and insurance 
coverage falls within the province of the legislature, and while I am 
worried about limits on freedom when the legislature gets too involved, 
this is not at issue in this case.  Legally, I agree with the suggestion 
that the suit should be dismissed on standing grounds.  But from a 
common sense point of view the provision of a benefit in circumstances 
in which you must affirmatively take additional action to receive the 
benefit should not be considered to impinge on the religious views of 
people who believe they should not have the benefit.  Just do not use 
it.  The policy with contraceptive coverage does not force the potential 
beneficiary to do anything and therefore should not be considered to 
affect his religious views, nor does it force his daughters to take 
advantage of it.


Freedom of religion should promote harmony.  Live and let live.  It 
should not provide religious people with the ability to interfere with 
the provision of benefits to those who do not share the same views.  
This is a classic case of an officious intermeddler trying to cause 
trouble because of personal sensitivities.  Even were he to have a 
right, I think this is a case where it is not right to assert it.  Even 
if he would be satisfied with a judicially mandated provision in the 
policy excluding coverage for anyone with religious objections to it, it 
is just wasting money and causing trouble.  Religious people should not 
interfere with benefits given to people who do not share their beliefs 
and if RFRA really gives them the option to do so, RFRA is not 
furthering the harmony religious freedom should promote.


   Jon

On 2013-08-16 07:41, Friedman, Howard M. wrote:

Eugene--

You are right that there is no obligation for you to furnish them
insurance. But under the ACA individual mandate, the children are
required to have insurance that includes certain women's health care
coverage or else pay a penalty. And we have set up a system where it
is much cheaper to keep children on their parents' employer-provided
group policy than having the children buy policies in the individual
market (assuming they do not have employer-provided insurance). So we
have set up a system with all kinds of economic incentives that
effectively pushes children who are not employed to stay on their
parents' policy-- here one (if the suit is successful) in which the
father is effectively imposing a religious objection on his grown
children. He can presumably do that for minor children, but not
adults.

Howard

-

FROM: religionlaw-boun...@lists.ucla.edu
[religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene
[vol...@law.ucla.edu]
 SENT: Thursday, August 15, 2013 11:33 PM
 TO: Law & Religion issues for Law Academics
(religionlaw@lists.ucla.edu)
 SUBJECT: RE: New Twist On Challenge to ACA Contraceptive Mandate

 This might just be my ignorance of the ACA, but I’m puzzled: How is
a father “deny[ing] his 18 and 19 year old daughters on his
insurance policy coverage for contraception” by insisting that any
such policy not have such coverage?

I had assumed that once my children are 18, I would have no 
obligation
to get them insurance, or anything at all. I might well still get 
them

such insurance (I do love them), but if I choose not to, I thought
that this choice wouldn’t be “deny[ing]” them anything, just as
my choice not to buy or lend them a car wouldn’t be “deny[ing]”
them a car. And if I give them an insurance policy that’s not as
good as the one they’d like (or that the government thinks they
ought to have), I still wouldn’t be “deny[ing]” them the better
coverage – I’d just be giving them, with no obligation on my part,
something less than what they’d like (just as my buying them a car
without air conditioning wouldn’t be denying them air conditioning).
Or does the ACA impose such an obligation on the parents of 18- and
19-year-old adults?

 Eugene

FROM: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] ON BEHALF OF Renee L. 
Cyr,

Esq.
 SENT: Thursday, August 15, 2013 8:19 PM
 TO: religionlaw@lists.ucla.edu
 SUBJECT: Re: New Twist On Challenge to ACA Contraceptive Mandate


Does anyone have a problem with a father, on religious freedom

grounds, being able to deny his 18 and 19 year old daughters


on his insurance policy coverage for contraception that the

government has mandated generally? Those are the facts in this


case.


I think that's part of the point that Marci was making -- and not 
only

for an 18 or 19 year old.

The father wasn't just saying he didn't want his girls to practice
contraception; he said he wanted them to not have access to
contraception. The former would be a particular medication used for a
particular purpose; the lat

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Friedman, Howard M.]

Eugene--

You are right that there is no obligation for you to furnish them insurance. 
But under the ACA individual mandate, the children are required to have 
insurance that includes certain women's health care coverage or else pay a 
penalty.  And we have set up a system where it is much cheaper to keep children 
on their parents' employer-provided group policy than having the children buy 
policies in the individual market (assuming they do not have employer-provided 
insurance).  So we have set up a system with all kinds of economic incentives 
that effectively pushes children who are not employed to stay on their parents' 
policy-- here one (if the suit is successful) in which the father is 
effectively imposing a religious objection on his grown children. He can 
presumably do that for minor children, but not adults.

Howard

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Thursday, August 15, 2013 11:33 PM
To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu)
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate

This might just be my ignorance of the ACA, but I’m puzzled:  
How is a father “deny[ing] his 18 and 19 year old daughters on his insurance 
policy coverage for contraception” by insisting that any such policy not have 
such coverage?

I had assumed that once my children are 18, I would have no obligation to get 
them insurance, or anything at all.  I might well still get them such insurance 
(I do love them), but if I choose not to, I thought that this choice wouldn’t 
be “deny[ing]” them anything, just as my choice not to buy or lend them a car 
wouldn’t be “deny[ing]” them a car.  And if I give them an insurance policy 
that’s not as good as the one they’d like (or that the government thinks they 
ought to have), I still wouldn’t be “deny[ing]” them the better coverage – I’d 
just be giving them, with no obligation on my part, something less than what 
they’d like (just as my buying them a car without air conditioning wouldn’t be 
denying them air conditioning).  Or does the ACA impose such an obligation on 
the parents of 18- and 19-year-old adults?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Renee L. Cyr, Esq.
Sent: Thursday, August 15, 2013 8:19 PM
To: religionlaw@lists.ucla.edu
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

>Does anyone have a problem with a father, on religious freedom grounds, being 
>able to deny his 18 and 19 year old daughters
>on his insurance policy coverage for contraception that the government has 
>mandated generally?  Those are the facts in this
>case.

I think that's part of the point that Marci was making -- and not only for an 
18 or 19 year old.

The father wasn't just saying he didn't want his girls to practice 
contraception; he said he wanted them to not have access to contraception.  The 
former would be a particular medication used for a particular purpose; the 
latter, as I see it, is access to the particular medication, period.  I can't 
imagine an insurer writing a policy, today, that makes a distinction between 
birth control pills that are prescribed as birth control and those prescribed 
for another stated purpose (in which case the doctor would need to call the 
insurer to get the prescription approved in advance, as is the case today for 
some specialty drugs).  Yet it would seem to me that writing a policy that 
fails to provide for a woman's reproductive health needs -- such as in the case 
of someone needing hormonal "birth control" to control cyst formation, 
excessive bleeding or whatever other symptom -- would violate the law.

And unlike having the power to say "I choose not to use birth control," one 
can't demand that one's body function correctly.  One can't say, "I choose not 
to have cysts" or "bleed excessively during menstruation."  Those conditions 
arise on their own, without warning, and need to be treated when they occur -- 
whether or not the insured expected to ever need hormonal "birth control" for a 
non-contraceptive purpose.  Waiving one's potential access to hormonal 
treatments for these conditions would be, at best, ill advised, though I 
suppose that's not a constitutional issue.

The other issue I see in the previous post is perhaps more relevant (and it 
might be the only one he intended to address) -- how can someone demand that 
mandated health coverage *not* be provided for someone else?  It would seem to 
me that he can't -- any such waiver would need to be signed by the daughters 
themselves.  The father would, of course, have the right to not carry his 
daughters on his policy if they refused to sig

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

This might just be my ignorance of the ACA, but I’m puzzled:  
How is a father “deny[ing] his 18 and 19 year old daughters on his insurance 
policy coverage for contraception” by insisting that any such policy not have 
such coverage?

I had assumed that once my children are 18, I would have no obligation to get 
them insurance, or anything at all.  I might well still get them such insurance 
(I do love them), but if I choose not to, I thought that this choice wouldn’t 
be “deny[ing]” them anything, just as my choice not to buy or lend them a car 
wouldn’t be “deny[ing]” them a car.  And if I give them an insurance policy 
that’s not as good as the one they’d like (or that the government thinks they 
ought to have), I still wouldn’t be “deny[ing]” them the better coverage – I’d 
just be giving them, with no obligation on my part, something less than what 
they’d like (just as my buying them a car without air conditioning wouldn’t be 
denying them air conditioning).  Or does the ACA impose such an obligation on 
the parents of 18- and 19-year-old adults?

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Renee L. Cyr, Esq.
Sent: Thursday, August 15, 2013 8:19 PM
To: religionlaw@lists.ucla.edu
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

>Does anyone have a problem with a father, on religious freedom grounds, being 
>able to deny his 18 and 19 year old daughters
>on his insurance policy coverage for contraception that the government has 
>mandated generally?  Those are the facts in this
>case.

I think that's part of the point that Marci was making -- and not only for an 
18 or 19 year old.

The father wasn't just saying he didn't want his girls to practice 
contraception; he said he wanted them to not have access to contraception.  The 
former would be a particular medication used for a particular purpose; the 
latter, as I see it, is access to the particular medication, period.  I can't 
imagine an insurer writing a policy, today, that makes a distinction between 
birth control pills that are prescribed as birth control and those prescribed 
for another stated purpose (in which case the doctor would need to call the 
insurer to get the prescription approved in advance, as is the case today for 
some specialty drugs).  Yet it would seem to me that writing a policy that 
fails to provide for a woman's reproductive health needs -- such as in the case 
of someone needing hormonal "birth control" to control cyst formation, 
excessive bleeding or whatever other symptom -- would violate the law.

And unlike having the power to say "I choose not to use birth control," one 
can't demand that one's body function correctly.  One can't say, "I choose not 
to have cysts" or "bleed excessively during menstruation."  Those conditions 
arise on their own, without warning, and need to be treated when they occur -- 
whether or not the insured expected to ever need hormonal "birth control" for a 
non-contraceptive purpose.  Waiving one's potential access to hormonal 
treatments for these conditions would be, at best, ill advised, though I 
suppose that's not a constitutional issue.

The other issue I see in the previous post is perhaps more relevant (and it 
might be the only one he intended to address) -- how can someone demand that 
mandated health coverage *not* be provided for someone else?  It would seem to 
me that he can't -- any such waiver would need to be signed by the daughters 
themselves.  The father would, of course, have the right to not carry his 
daughters on his policy if they refused to sign the waiver.  (I'm not going to 
address the issues regarding coercion that may be ethically compelling but not 
directly relevant to this discussion.)

- Renee

Renee L. Cyr, Esq.
Office of Steve S. Efron
237 West 35th Street, Suite 1502
New York, NY  10001
(212) 867-1067

-Original Message-
From: Friedman, Howard M. 
mailto:howard.fried...@utoledo.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thu, Aug 15, 2013 10:48 pm
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate
Does anyone have a problem with a father, on religious freedom grounds, being 
able to deny his 18 and 19 year old daughters on his insurance policy coverage 
for contraception that the government has mandated generally?  Those are the 
facts in this case.
___
To post, send message to Religionlaw@lists.ucla.edu
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Re: New Twist On Challenge to ACA Contraceptive Mandate

[Renee L. Cyr, Esq.]

>Does anyone have a problem with a father, on religious freedom grounds, being 
>able to deny his 18 and 19 year old daughters
>on his insurance policy coverage for contraception that the government has 
>mandated generally?  Those are the facts in this
>case.


I think that's part of the point that Marci was making -- and not only for an 
18 or 19 year old.


The father wasn't just saying he didn't want his girls to practice 
contraception; he said he wanted them to not have access to contraception.  The 
former would be a particular medication used for a particular purpose; the 
latter, as I see it, is access to the particular medication, period.  I can't 
imagine an insurer writing a policy, today, that makes a distinction between 
birth control pills that are prescribed as birth control and those prescribed 
for another stated purpose (in which case the doctor would need to call the 
insurer to get the prescription approved in advance, as is the case today for 
some specialty drugs).  Yet it would seem to me that writing a policy that 
fails to provide for a woman's reproductive health needs -- such as in the case 
of someone needing hormonal "birth control" to control cyst formation, 
excessive bleeding or whatever other symptom -- would violate the law.


And unlike having the power to say "I choose not to use birth control," one 
can't demand that one's body function correctly.  One can't say, "I choose not 
to have cysts" or "bleed excessively during menstruation."  Those conditions 
arise on their own, without warning, and need to be treated when they occur -- 
whether or not the insured expected to ever need hormonal "birth control" for a 
non-contraceptive purpose.  Waiving one's potential access to hormonal 
treatments for these conditions would be, at best, ill advised, though I 
suppose that's not a constitutional issue.


The other issue I see in the previous post is perhaps more relevant (and it 
might be the only one he intended to address) -- how can someone demand that 
mandated health coverage *not* be provided for someone else?  It would seem to 
me that he can't -- any such waiver would need to be signed by the daughters 
themselves.  The father would, of course, have the right to not carry his 
daughters on his policy if they refused to sign the waiver.  (I'm not going to 
address the issues regarding coercion that may be ethically compelling but not 
directly relevant to this discussion.)


- Renee


Renee L. Cyr, Esq.
Office of Steve S. Efron
237 West 35th Street, Suite 1502
New York, NY  10001
(212) 867-1067



-Original Message-----
From: Friedman, Howard M. 
To: Law & Religion issues for Law Academics 
Sent: Thu, Aug 15, 2013 10:48 pm
Subject: RE: New Twist On Challenge to ACA Contraceptive Mandate



Does anyone have a problem with a father, on religious freedom grounds, being 
able to deny his 18 and 19 year old daughters on his insurance policy coverage 
for contraception that the government has mandated generally?  Those are the 
facts in this case.


From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Len [campquest...@comcast.net]
Sent: Thursday, August 15, 2013 6:59 PM
To: Ed Darrell; Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate




>> As far as I understand the situation, no one legally objects to the health 
>> (unrelated to reproduction) use of the pill.<<

If an employer objects to coverage for contraceptives, how is he to tell the 
difference without prying into his employee's medical condition?  Isn't there a 
potential HIPAA violation in there somewhere?




From: "Ed Darrell" 
To: "Law & Religion issues for Law Academics" 
Sent: Thursday, August 15, 2013 3:16:01 PM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate


A good, too-often, too-badly needed reality check, Marci.  Thanks.

I still wonder whether there is any controversy here to adjudicate.  Why cannot 
the plaintiff simply refuse the coverage?  Or refuse contraception?

I'm partly reminded by my 7th-Day Adventist end of the family, and my Uncle 
Roland Christian.  He was a bit up in the hierarchy of the church, and as some 
Adventists do, he and his wife abstained from coffee.

So, we were surprised at one visit when, at a restaurant, he made a relatively 
big deal about ordering a "therapeutic" cup of coffee after dinner.  Eventually 
he explained that both of them had been diagnosed with low blood pressure at 
Loma Linda Hospital.  Their Adventist physician gave them a choice of a pill, 
at about $1 a day each, or taking a cup of coffee in the morning, and one in 
the evening.  Back then you could still get a decent cup at most restaurants 
for less than 50 cents.  They chose the cof

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Friedman, Howard M.]

Does anyone have a problem with a father, on religious freedom grounds, being 
able to deny his 18 and 19 year old daughters on his insurance policy coverage 
for contraception that the government has mandated generally?  Those are the 
facts in this case.

From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] 
on behalf of Len [campquest...@comcast.net]
Sent: Thursday, August 15, 2013 6:59 PM
To: Ed Darrell; Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

>> As far as I understand the situation, no one legally objects to the health 
>> (unrelated to reproduction) use of the pill.<<

If an employer objects to coverage for contraceptives, how is he to tell the 
difference without prying into his employee's medical condition?  Isn't there a 
potential HIPAA violation in there somewhere?




From: "Ed Darrell" 
To: "Law & Religion issues for Law Academics" 
Sent: Thursday, August 15, 2013 3:16:01 PM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

A good, too-often, too-badly needed reality check, Marci.  Thanks.

I still wonder whether there is any controversy here to adjudicate.  Why cannot 
the plaintiff simply refuse the coverage?  Or refuse contraception?

I'm partly reminded by my 7th-Day Adventist end of the family, and my Uncle 
Roland Christian.  He was a bit up in the hierarchy of the church, and as some 
Adventists do, he and his wife abstained from coffee.

So, we were surprised at one visit when, at a restaurant, he made a relatively 
big deal about ordering a "therapeutic" cup of coffee after dinner.  Eventually 
he explained that both of them had been diagnosed with low blood pressure at 
Loma Linda Hospital.  Their Adventist physician gave them a choice of a pill, 
at about $1 a day each, or taking a cup of coffee in the morning, and one in 
the evening.  Back then you could still get a decent cup at most restaurants 
for less than 50 cents.  They chose the coffee.

He said with a wink that it was not a sin if he didn't enjoy it, too much.

There are alternative solutions well short of the legal system for a lot of 
these issues, it seems to me.

Ed Darrell
Dallas



From: Michael Worley 
To: Law & Religion issues for Law Academics 
Sent: Thursday, August 15, 2013 11:52 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

As far as I understand the situation, no one legally objects to the health 
(unrelated to reproduction) use of the pill.

As to those whose religion requires contraception, religious adherents cannot 
force the government to buy for them wine for sacraments, or even bandaids for 
cuts, even if they are mandated by religion.  We do not have laws forbidding 
reproduction by certain couples if there is a risk of disability-- thus, while 
we approach the issue from different angles, Marci's compelling interest 
arguments do not strike me as plausible given present jurisprudence.  Unjust 
from a point of view, sure, but hardly a compelling interest by the 
government-- certainly a personal compelling interest, but so is three meals a 
day.

We don't have a constitutional right to food (though government programs 
thankfully assist with this).  To state someone's personal compelling interest 
in purchasing a product translates to the state's compelling interest in 
providing a product is not supported by case law.  Personal interests provide 
governmental rational basis, of course, but not a governmental compelling 
interest.

Just my 2¢,

Michael


--
Michael Worley
BYU Law School, Class of 2014


On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:
I assume they were serious and hope they were.

If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps,
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3.

Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton



On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy" 
mailto:ttra...@avemarialaw.edu>> wrote:

I hope that neithe

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

>> As far as I understand the situation, no one legally objects to the health 
>> (unrelated to reproduction) use of the pill. << 

If an employer objects to coverage for contraceptives, how is he to tell the 
difference without prying into his employee's medical condition? Isn't there a 
potential HIPAA violation in there somewhere? 



- Original Message -
From: "Ed Darrell"  
To: "Law & Religion issues for Law Academics"  
Sent: Thursday, August 15, 2013 3:16:01 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 


A good, too-often, too-badly needed reality check, Marci. Thanks. 

I still wonder whether there is any controversy here to adjudicate. Why cannot 
the plaintiff simply refuse the coverage? Or refuse contraception? 

I'm partly reminded by my 7th-Day Adventist end of the family, and my Uncle 
Roland Christian. He was a bit up in the hierarchy of the church, and as some 
Adventists do, he and his wife abstained from coffee. 

So, we were surprised at one visit when, at a restaurant, he made a relatively 
big deal about ordering a "therapeutic" cup of coffee after dinner. Eventually 
he explained that both of them had been diagnosed with low blood pressure at 
Loma Linda Hospital. Their Adventist physician gave them a choice of a pill, at 
about $1 a day each, or taking a cup of coffee in the morning, and one in the 
evening. Back then you could still get a decent cup at most restaurants for 
less than 50 cents. They chose the coffee. 

He said with a wink that it was not a sin if he didn't enjoy it, too much. 

There are alternative solutions well short of the legal system for a lot of 
these issues, it seems to me. 

Ed Darrell 
Dallas 








From: Michael Worley  
To: Law & Religion issues for Law Academics  
Sent: Thursday, August 15, 2013 11:52 AM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




As far as I understand the situation, no one legally objects to the health 
(unrelated to reproduction) use of the pill. 

As to those whose religion requires contraception, religious adherents cannot 
force the government to buy for them wine for sacraments, or even bandaids for 
cuts, even if they are mandated by religion. We do not have laws forbidding 
reproduction by certain couples if there is a risk of disability-- thus, while 
we approach the issue from different angles, Marci's compelling interest 
arguments do not strike me as plausible given present jurisprudence. Unjust 
from a point of view, sure, but hardly a compelling interest by the 
government-- certainly a personal compelling interest, but so is three meals a 
day. 

We don't have a constitutional right to food (though government programs 
thankfully assist with this). To state someone's personal compelling interest 
in purchasing a product translates to the state's compelling interest in 
providing a product is not supported by case law. Personal interests provide 
governmental rational basis, of course, but not a governmental compelling 
interest. 


Just my 2¢, 


Michael 




-- 
Michael Worley 
BYU Law School, Class of 2014 



On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton < hamilto...@aol.com > wrote: 




I assume they were serious and hope they were. 


If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps, 
this is medication and treatment that is indeed compelling. If you cannot go to 
work for 5 days every month because of the severity of your periods, there is a 
compelling interest for the employer, employee, and the govt to make such 
treatments available. If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3. 


Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check. 


Marci 

Marci A. Hamilton 
Verkuil Chair in Public Law 
Benjamin N. Cardozo Law School 
Yeshiva University 
@Marci_Hamilton 







On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy" < ttra...@avemarialaw.edu > 
wrote: 





I hope that neither you nor Eduardo are serious in your responses. The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion. The government obviously has a compelling interest in the former 
but certainly not in the latter. 


Timothy J. Tracey 
Associate Professor of Law 
Ave Maria School of Law 

On August 15, 2013 at 11:42:29 AM, Len ( campquest...@comcast.net ) wrote: 




Next up, a la

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I agree there may well be a compelling interest in the 
government’s providing for life-saving procedures, even ones that an insured 
refused to buy insurance for.  But -- assuming that offering an employee a 
policy covering such procedures, with no other options, is a substantial burden 
(a matter I doubt, for reasons mentioned below) -- the question under the state 
RFRA is whether giving employees this sort of all-coverage-or-nothing option is 
“essential” to serving the compelling government interest.  Are we sure that 
such a policy is indeed essential to that interest, given the other means the 
government has for serving the interest?

I realize that some people seem to think that my sex is something of a handicap 
in analyzing this argument (see one of the items below) -- but I think I’ll 
keep discussing the matter without regard to such objections.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len
Sent: Thursday, August 15, 2013 1:45 PM
To: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate


I also suggest that in the interest of compassion consideration might be given 
to ectopic and anencephalic pregnancies.



Thanks.






From: "Len" mailto:campquest...@comcast.net>>
To: "Marci Hamilton" mailto:hamilto...@aol.com>>
Cc: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thursday, August 15, 2013 2:03:32 PM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

>> I assume they were serious and hope they were.



Some of both.



May I also suggest a compelling interest to provide coverage for late-term 
theraputic abortion, for the purpose of saving the life of the mother?  For 
example:  fetal death at 28 weeks, with no natural expulsion of the fetus, 
resulting in sepsis and death of the mother when the fetus is not removed 
surgically.  Unfortunately, this is not a hypothetical -- my wife's mother died 
this way.



Thanks



From: "Marci Hamilton" mailto:hamilto...@aol.com>>
To: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Cc: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>, "Len" 
mailto:campquest...@comcast.net>>
Sent: Thursday, August 15, 2013 12:33:14 PM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate
I assume they were serious and hope they were.

If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps,
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3.

Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

I also suggest that in the interest of compassion  consideration might be given 
to ectopic and anencephalic pregnancies. 



Thanks. 





- Original Message -


From: "Len"  
To: "Marci Hamilton"  
Cc: "Law & Religion issues for Law Academics"  
Sent: Thursday, August 15, 2013 2:03:32 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




>> I assume they were serious and hope they were.   

  

Some of both. 

  

May I also suggest a compelling interest to provide coverage for late-term 
theraputic abortion, for the purpose of saving the life of the mother?  For 
example:  fetal death at 28 weeks, with no natural expulsion of the fetus, 
resulting in sepsis and death of the mother when the fetus is not removed 
surgically.  Unfortunately, this is not a hypothetical -- my wife's mother died 
this way. 

  

Thanks 



- Original Message -




From: "Marci Hamilton"  
To: "Law & Religion issues for Law Academics"  
Cc: "Law & Religion issues for Law Academics" , 
"Len"  
Sent: Thursday, August 15, 2013 12:33:14 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 


I assume they were serious and hope they were.   


If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps, 
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3. 


Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check. 


Marci 

Marci A. Hamilton 
Verkuil Chair in Public Law 
Benjamin N. Cardozo Law School 
Yeshiva University 
@Marci_Hamilton  





On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy" < ttra...@avemarialaw.edu > 
wrote: 





I hope that neither you nor Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.   


Timothy J. Tracey 
Associate Professor of Law 
Ave Maria School of Law 


On August 15, 2013 at 11:42:29 AM, Len ( campquest...@comcast.net ) wrote: 





Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer. 

  

  

  

- Original Message -




From: "Eduardo Penalver" < penal...@uchicago.edu > 
To: "Law & Religion issues for Law Academics" < religionlaw@lists.ucla.edu > 
Sent: Thursday, August 15, 2013 11:06:49 AM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception. 


Eduardo 












From: "Friedman, Howard M." < howard.fried...@utoledo.edu > 
Reply-To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu 
> 
Date: Thu, 15 Aug 2013 13:52:52 + 
To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu > 
Subject: New Twist On Challenge to ACA Contraceptive Mandate 





In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog--  
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html
 


Howard Friedman ___ 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: New Twist On Challenge to ACA Contraceptive Mandate

[Ed Darrell]

A good, too-often, too-badly needed reality check, Marci.  Thanks.

I still wonder whether there is any controversy here to adjudicate.  Why cannot 
the plaintiff simply refuse the coverage?  Or refuse contraception?

I'm partly reminded by my 7th-Day Adventist end of the family, and my Uncle 
Roland Christian.  He was a bit up in the hierarchy of the church, and as some 
Adventists do, he and his wife abstained from coffee.

So, we were surprised at one visit when, at a restaurant, he made a relatively 
big deal about ordering a "therapeutic" cup of coffee after dinner.  Eventually 
he explained that both of them had been diagnosed with low blood pressure at 
Loma Linda Hospital.  Their Adventist physician gave them a choice of a pill, 
at about $1 a day each, or taking a cup of coffee in the morning, and one in 
the evening.  Back then you could still get a decent cup at most restaurants 
for less than 50 cents.  They chose the coffee.

He said with a wink that it was not a sin if he didn't enjoy it, too much.

There are alternative solutions well short of the legal system for a lot of 
these issues, it seems to me.

Ed Darrell
Dallas





 From: Michael Worley 
To: Law & Religion issues for Law Academics  
Sent: Thursday, August 15, 2013 11:52 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate
 


As far as I understand the situation, no one legally objects to the health 
(unrelated to reproduction) use of the pill.

As to those whose religion requires contraception, religious adherents cannot 
force the government to buy for them wine for sacraments, or even bandaids for 
cuts, even if they are mandated by religion.  We do not have laws forbidding 
reproduction by certain couples if there is a risk of disability-- thus, while 
we approach the issue from different angles, Marci's compelling interest 
arguments do not strike me as plausible given present jurisprudence.  Unjust 
from a point of view, sure, but hardly a compelling interest by the 
government-- certainly a personal compelling interest, but so is three meals a 
day.

We don't have a constitutional right to food (though government programs 
thankfully assist with this).  To state someone's personal compelling interest 
in purchasing a product translates to the state's compelling interest in 
providing a product is not supported by case law.  Personal interests provide 
governmental rational basis, of course, but not a governmental compelling 
interest.

Just my 2¢,

Michael


-- 
Michael Worley
BYU Law School, Class of 2014



On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton  wrote:

I assume they were serious and hope they were.  
>
>
>If you are a woman with unstoppable bleeding as part of your periods, or 
>excruciating cramps,
>this is medication and treatment that is indeed compelling.  If you cannot go 
>to work for 5 days every month because of the severity of your periods, there 
>is a compelling interest for the employer, employee, and the govt to make such 
>treatments available.  If your religious beliefs preclude you from having a 
>family you cannot support, or if you carry a gene that could lead to 
>devastating illness and disability in your child, and your religious beliefs 
>counsel against pregnancy, there is also a compelling interest In all 3.
>
>
>Apologies to those who are squeamish about what we are really talking about, 
>but the abstract quality of the legal discourse largely carried on by men 
>needs a reality check.
>
>
>Marci
>
>Marci A. Hamilton
>Verkuil Chair in Public Law
>Benjamin N. Cardozo Law School
>Yeshiva University@Marci_Hamilton 
>
>
>
>
>
>On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy"  
>wrote:
>
>
>I hope that neither you nor Eduardo are serious in your responses.  The 
>government's interest in ensuring basic medical care and lifesaving measures 
>is significantly different than whatever interest the government has in 
>forcing religious organizations to supply coverage of contraception, 
>sterilizations, and abortion.  The government obviously has a compelling 
>interest in the former but certainly not in the latter.  
>>
>>
>>Timothy J. Tracey
>>Associate Professor of Law
>>Ave Maria School of Law
>>
>>On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote:
>>Next up, a lawsuit seeking on religious liberty grounds the ability to obtain 
>>a health insurance policy from his employer that does not cover vaccinations 
>>or other medications, or surgery, but only covers healing prayer.
>>> 
>>> 
>>> 
>>>
>>> 
>>>From: "Eduardo Penalver" 
>>>To: "Law & Religion issues for Law Academics" 

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Scarberry, Mark]

Without judging the merits of the claim (which I can’t explore in detail now 
with classes about to start), what we are discussing is the alleged right of an 
employee to receive an insurance policy for the employee and the employee’s 
family which excludes benefits that the employer (in this case the state) wants 
to provide. We are not talking about denying anyone else any coverage, or 
denying (or requiring denial of) any coverage to anyone who wants coverage, 
unless there is disagreement among the members of the legislator’s family. It 
seems to me that the state could offer a free supplemental policy directly to 
family members who might disagree with the employee on these matters.

Alternatively, the state could offer a waiver of coverage to  each member of 
the family. All of the family members are adults, except for one daughter, who 
is 12.

There could be an issue of whether the parent should be allowed to waive 
coverage on behalf of a minor child, or be allowed to refuse, on behalf of the 
minor child, an offer of a free policy. I would have to spend more time than I 
have right now to figure out how to take into account the likelihood that 12 is 
well below the age of consent under state law.

There would also be an issue under the approach taken in Thomas v. Review 
Board, if either of those measures would, in the employee’s religious view, 
involve complicity with wrongful actions (due to the relationship of the 
coverage to the employment). Again, I don’t have time to address those issues 
now.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Thursday, August 15, 2013 10:22 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

Well, we are debating the contents of the plan, equality, and fundamental 
fairness.  Those opposed to the mandate are arguing for a health system that 
excludes coverage for women's reproductive health needs, which are often 
compelling.

Were there no comprehensive plan as backdrop, we would have a different 
discussion.   The question is whether women employees of employers who are 
already not permitted to discriminate in hiring on the basis of religion and 
gender can discriminate in their health care plans on the basis of religion and 
gender.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
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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: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

>> I assume they were serious and hope they were.   



Some of both. 



May I also suggest a compelling interest to provide coverage for late-term 
theraputic abortion, for the purpose of saving the life of the mother?  For 
example:  fetal death at 28 weeks, with no natural expulsion of the fetus, 
resulting in sepsis and death of the mother when the fetus is not removed 
surgically.  Unfortunately, this is not a hypothetical -- my wife's mother died 
this way. 



Thanks 



- Original Message -


From: "Marci Hamilton"  
To: "Law & Religion issues for Law Academics"  
Cc: "Law & Religion issues for Law Academics" , 
"Len"  
Sent: Thursday, August 15, 2013 12:33:14 PM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 


I assume they were serious and hope they were.   


If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps, 
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3. 


Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check. 


Marci 

Marci A. Hamilton 
Verkuil Chair in Public Law 
Benjamin N. Cardozo Law School 
Yeshiva University 
@Marci_Hamilton  





On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy" < ttra...@avemarialaw.edu > 
wrote: 





I hope that neither you nor Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.   


Timothy J. Tracey 
Associate Professor of Law 
Ave Maria School of Law 


On August 15, 2013 at 11:42:29 AM, Len ( campquest...@comcast.net ) wrote: 





Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer. 

  

  

  

- Original Message -




From: "Eduardo Penalver" < penal...@uchicago.edu > 
To: "Law & Religion issues for Law Academics" < religionlaw@lists.ucla.edu > 
Sent: Thursday, August 15, 2013 11:06:49 AM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception. 


Eduardo 












From: "Friedman, Howard M." < howard.fried...@utoledo.edu > 
Reply-To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu 
> 
Date: Thu, 15 Aug 2013 13:52:52 + 
To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu > 
Subject: New Twist On Challenge to ACA Contraceptive Mandate 





In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog--  
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html
 


Howard Friedman ___ 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) forw

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Marci Hamilton]

Well, we are debating the contents of the plan, equality, and fundamental 
fairness.  Those opposed to the mandate are arguing for a health system that 
excludes coverage for women's reproductive health needs, which are often 
compelling.   

Were there no comprehensive plan as backdrop, we would have a different 
discussion.   The question is whether women employees of employers who are 
already not permitted to discriminate in hiring on the basis of religion and 
gender can discriminate in their health care plans on the basis of religion and 
gender.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 15, 2013, at 12:57 PM, Michael Worley  wrote:

> If we were debating banning contraception, Marci's argument would work and 
> make perfect sense.  We are, instead, debating government-mandated funding of 
> contraception.
> 
> Michael
> 
> 
> On Thu, Aug 15, 2013 at 10:52 AM, Michael Worley  wrote:
>> As far as I understand the situation, no one legally objects to the health 
>> (unrelated to reproduction) use of the pill.
>> 
>> As to those whose religion requires contraception, religious adherents 
>> cannot force the government to buy for them wine for sacraments, or even 
>> bandaids for cuts, even if they are mandated by religion.  We do not have 
>> laws forbidding reproduction by certain couples if there is a risk of 
>> disability-- thus, while we approach the issue from different angles, 
>> Marci's compelling interest arguments do not strike me as plausible given 
>> present jurisprudence.  Unjust from a point of view, sure, but hardly a 
>> compelling interest by the government-- certainly a personal compelling 
>> interest, but so is three meals a day.
>> 
>> We don't have a constitutional right to food (though government programs 
>> thankfully assist with this).  To state someone's personal compelling 
>> interest in purchasing a product translates to the state's compelling 
>> interest in providing a product is not supported by case law.  Personal 
>> interests provide governmental rational basis, of course, but not a 
>> governmental compelling interest.
>> 
>> Just my 2¢,
>> 
>> Michael
>> 
>> 
>> -- 
>> Michael Worley
>> BYU Law School, Class of 2014
>> 
>> 
>> On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton  wrote:
>>> I assume they were serious and hope they were.  
>>> 
>>> If you are a woman with unstoppable bleeding as part of your periods, or 
>>> excruciating cramps,
>>> this is medication and treatment that is indeed compelling.  If you cannot 
>>> go to work for 5 days every month because of the severity of your periods, 
>>> there is a compelling interest for the employer, employee, and the govt to 
>>> make such treatments available.  If your religious beliefs preclude you 
>>> from having a family you cannot support, or if you carry a gene that could 
>>> lead to devastating illness and disability in your child, and your 
>>> religious beliefs counsel against pregnancy, there is also a compelling 
>>> interest In all 3.
>>> 
>>> Apologies to those who are squeamish about what we are really talking 
>>> about, but the abstract quality of the legal discourse largely carried on 
>>> by men needs a reality check.
>>> 
>>> Marci
>>> 
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton 
>>> 
>>> 
>>> 
>>> On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy"  
>>> wrote:
>>> 
>>>> I hope that neither you nor Eduardo are serious in your responses.  The 
>>>> government's interest in ensuring basic medical care and lifesaving 
>>>> measures is significantly different than whatever interest the government 
>>>> has in forcing religious organizations to supply coverage of 
>>>> contraception, sterilizations, and abortion.  The government obviously has 
>>>> a compelling interest in the former but certainly not in the latter.  
>>>> 
>>>> Timothy J. Tracey
>>>> Associate Professor of Law
>>>> Ave Maria School of Law
>>>> 
>>>> On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote:
>>>> 
>>>>> Next up, a lawsuit seeking on religious liberty grounds the ability to 
>>>>> obtain a health insurance policy from his employ

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Michael Worley]

If we were debating banning contraception, Marci's argument would work and
make perfect sense.  We are, instead, debating government-mandated funding
of contraception.

Michael


On Thu, Aug 15, 2013 at 10:52 AM, Michael Worley  wrote:

> As far as I understand the situation, no one legally objects to the health
> (unrelated to reproduction) use of the pill.
>
> As to those whose religion requires contraception, religious adherents
> cannot force the government to buy for them wine for sacraments, or even
> bandaids for cuts, even if they are mandated by religion.  We do not have
> laws forbidding reproduction by certain couples if there is a risk of
> disability-- thus, while we approach the issue from different angles,
> Marci's compelling interest arguments do not strike me as plausible given
> present jurisprudence.  Unjust from a point of view, sure, but hardly a
> compelling interest by the government-- certainly a personal compelling
> interest, but so is three meals a day.
>
> We don't have a constitutional right to food (though government programs
> thankfully assist with this).  To state someone's personal compelling
> interest in purchasing a product translates to the state's compelling
> interest in providing a product is not supported by case law.  Personal
> interests provide governmental rational basis, of course, but not a
> governmental compelling interest.
>
> Just my 2¢,
>
> Michael
>
>
> --
> Michael Worley
> BYU Law School, Class of 2014
>
>
> On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton wrote:
>
>> I assume they were serious and hope they were.
>>
>> If you are a woman with unstoppable bleeding as part of your periods, or
>> excruciating cramps,
>> this is medication and treatment that is indeed compelling.  If you
>> cannot go to work for 5 days every month because of the severity of your
>> periods, there is a compelling interest for the employer, employee, and the
>> govt to make such treatments available.  If your religious beliefs preclude
>> you from having a family you cannot support, or if you carry a gene that
>> could lead to devastating illness and disability in your child, and your
>> religious beliefs counsel against pregnancy, there is also a compelling
>> interest In all 3.
>>
>> Apologies to those who are squeamish about what we are really talking
>> about, but the abstract quality of the legal discourse largely carried on
>> by men needs a reality check.
>>
>> Marci
>>
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton
>>
>>
>>
>> On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy" 
>> wrote:
>>
>>  I hope that neither you nor Eduardo are serious in your responses.  The
>> government's interest in ensuring basic medical care and lifesaving
>> measures is significantly different than whatever interest the government
>> has in forcing religious organizations to supply coverage of contraception,
>> sterilizations, and abortion.  The government obviously has a compelling
>> interest in the former but certainly not in the latter.
>>
>> Timothy J. Tracey
>> Associate Professor of Law
>> Ave Maria School of Law
>>
>> On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote:
>>
>>   Next up, a lawsuit seeking on religious liberty grounds the ability to
>> obtain a health insurance policy from his employer that does not cover
>> vaccinations or other medications, or surgery, but only covers healing
>> prayer.
>>
>>
>>
>>
>>
>>
>>
>> --
>>
>> *From: *"Eduardo Penalver" 
>> *To: *"Law & Religion issues for Law Academics" <
>> religionlaw@lists.ucla.edu>
>> *Sent: *Thursday, August 15, 2013 11:06:49 AM
>> *Subject: *Re: New Twist On Challenge to ACA Contraceptive Mandate
>>
>>   Next up, a lawsuit demanding to be paid in currency that can't be used
>> to buy contraception.
>>
>>  Eduardo
>>
>>
>>
>>
>>
>>   From: "Friedman, Howard M." 
>> Reply-To: Law & Religion issues for Law Academics <
>> religionlaw@lists.ucla.edu>
>> Date: Thu, 15 Aug 2013 13:52:52 +
>> To: Law & Religion issues for Law Academics 
>> Subject: New Twist On Challenge to ACA Contraceptive Mandate
>>
>>   In an interesting new lawsuit, a Missouri legislator (suing as an
>> employee of the state) seeks on religious liberty 

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Michael Worley]

As far as I understand the situation, no one legally objects to the health
(unrelated to reproduction) use of the pill.

As to those whose religion requires contraception, religious adherents
cannot force the government to buy for them wine for sacraments, or even
bandaids for cuts, even if they are mandated by religion.  We do not have
laws forbidding reproduction by certain couples if there is a risk of
disability-- thus, while we approach the issue from different angles,
Marci's compelling interest arguments do not strike me as plausible given
present jurisprudence.  Unjust from a point of view, sure, but hardly a
compelling interest by the government-- certainly a personal compelling
interest, but so is three meals a day.

We don't have a constitutional right to food (though government programs
thankfully assist with this).  To state someone's personal compelling
interest in purchasing a product translates to the state's compelling
interest in providing a product is not supported by case law.  Personal
interests provide governmental rational basis, of course, but not a
governmental compelling interest.

Just my 2¢,

Michael


-- 
Michael Worley
BYU Law School, Class of 2014


On Thu, Aug 15, 2013 at 10:33 AM, Marci Hamilton  wrote:

> I assume they were serious and hope they were.
>
> If you are a woman with unstoppable bleeding as part of your periods, or
> excruciating cramps,
> this is medication and treatment that is indeed compelling.  If you cannot
> go to work for 5 days every month because of the severity of your periods,
> there is a compelling interest for the employer, employee, and the govt to
> make such treatments available.  If your religious beliefs preclude you
> from having a family you cannot support, or if you carry a gene that could
> lead to devastating illness and disability in your child, and your
> religious beliefs counsel against pregnancy, there is also a compelling
> interest In all 3.
>
> Apologies to those who are squeamish about what we are really talking
> about, but the abstract quality of the legal discourse largely carried on
> by men needs a reality check.
>
> Marci
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy" 
> wrote:
>
>  I hope that neither you nor Eduardo are serious in your responses.  The
> government's interest in ensuring basic medical care and lifesaving
> measures is significantly different than whatever interest the government
> has in forcing religious organizations to supply coverage of contraception,
> sterilizations, and abortion.  The government obviously has a compelling
> interest in the former but certainly not in the latter.
>
> Timothy J. Tracey
> Associate Professor of Law
> Ave Maria School of Law
>
> On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote:
>
>   Next up, a lawsuit seeking on religious liberty grounds the ability to
> obtain a health insurance policy from his employer that does not cover
> vaccinations or other medications, or surgery, but only covers healing
> prayer.
>
>
>
>
>
>
>
> ------------------
>
> *From: *"Eduardo Penalver" 
> *To: *"Law & Religion issues for Law Academics" <
> religionlaw@lists.ucla.edu>
> *Sent: *Thursday, August 15, 2013 11:06:49 AM
> *Subject: *Re: New Twist On Challenge to ACA Contraceptive Mandate
>
>   Next up, a lawsuit demanding to be paid in currency that can't be used
> to buy contraception.
>
>  Eduardo
>
>
>
>
>
>   From: "Friedman, Howard M." 
> Reply-To: Law & Religion issues for Law Academics <
> religionlaw@lists.ucla.edu>
> Date: Thu, 15 Aug 2013 13:52:52 +
> To: Law & Religion issues for Law Academics 
> Subject: New Twist On Challenge to ACA Contraceptive Mandate
>
>   In an interesting new lawsuit, a Missouri legislator (suing as an
> employee of the state) seeks on religious liberty grounds the ability to
> obtain a health insurance policy from his employer that does not cover
> contraception, sterilization or abortifacients.  He particularly objects to
> coverage of these in his policy for his 3 daughters, age 12, 18 and 19.
>  More on Religion Clause blog--
> http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html
>
>  Howard Friedman
>   ___ 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 canno

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Marci Hamilton]

I assume they were serious and hope they were.  

If you are a woman with unstoppable bleeding as part of your periods, or 
excruciating cramps,
this is medication and treatment that is indeed compelling.  If you cannot go 
to work for 5 days every month because of the severity of your periods, there 
is a compelling interest for the employer, employee, and the govt to make such 
treatments available.  If your religious beliefs preclude you from having a 
family you cannot support, or if you carry a gene that could lead to 
devastating illness and disability in your child, and your religious beliefs 
counsel against pregnancy, there is also a compelling interest In all 3.

Apologies to those who are squeamish about what we are really talking about, 
but the abstract quality of the legal discourse largely carried on by men needs 
a reality check.

Marci

Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton 



On Aug 15, 2013, at 11:53 AM, "Tracey, Timothy"  wrote:

> I hope that neither you nor Eduardo are serious in your responses.  The 
> government's interest in ensuring basic medical care and lifesaving measures 
> is significantly different than whatever interest the government has in 
> forcing religious organizations to supply coverage of contraception, 
> sterilizations, and abortion.  The government obviously has a compelling 
> interest in the former but certainly not in the latter.  
> 
> Timothy J. Tracey
> Associate Professor of Law
> Ave Maria School of Law
> 
> On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote:
> 
>> Next up, a lawsuit seeking on religious liberty grounds the ability to 
>> obtain a health insurance policy from his employer that does not cover 
>> vaccinations or other medications, or surgery, but only covers healing 
>> prayer.
>> 
>>  
>> 
>>  
>> 
>>  
>> 
>> From: "Eduardo Penalver" 
>> To: "Law & Religion issues for Law Academics" 
>> Sent: Thursday, August 15, 2013 11:06:49 AM
>> Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 
>> 
>> Next up, a lawsuit demanding to be paid in currency that can't be used to 
>> buy contraception.
>> 
>> Eduardo
>> 
>> 
>> 
>> 
>> 
>> From: "Friedman, Howard M." 
>> Reply-To: Law & Religion issues for Law Academics 
>> 
>> Date: Thu, 15 Aug 2013 13:52:52 +
>> To: Law & Religion issues for Law Academics 
>> Subject: New Twist On Challenge to ACA Contraceptive Mandate 
>> 
>> In an interesting new lawsuit, a Missouri legislator (suing as an employee 
>> of the state) seeks on religious liberty grounds the ability to obtain a 
>> health insurance policy from his employer that does not cover contraception, 
>> sterilization or abortifacients.  He particularly objects to coverage of 
>> these in his policy for his 3 daughters, age 12, 18 and 19.  More on 
>> Religion Clause blog-- 
>> http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html
>> 
>> Howard Friedman
>> ___ 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.
> CONFIDENTIALITY NOTICE: This e-mail transmission is the property of Ave Maria 
> School of Law and may contain confidential or privileged information. It is 
> intended only for the addressee(s) named above. If you receive this e-mail in 
> error, please do not read, copy or disseminate it in any manner.  If you are 
> not the intended recipient, any disclosure, copying, distribution or use of 
> the contents of this information is prohibited and may be unlawful. Please 
> reply to the message im

RE: New Twist On Challenge to ACA Contraceptive Mandate

[Volokh, Eugene]

I’m not sympathetic to the legislator’s claim, and I’m not sure 
that the provision of only a general insurance policy and not the one with the 
exceptions substantially burdens the legislator’s belief.  Indeed, the 
legislator’s ability to send a disclaimer to the insurance carrier promising 
not to use certain services would, I think, suffice to eliminate any burden he 
might feel from having the policy.  Cf. Tony & Susan Alamo Foundation v. 
Secretary of Labor, 
http://scholar.google.com/scholar_case?case=5047029536558334851 (alleged burden 
imposed by minimum wage law on employees who felt a religious duty to volunteer 
was eliminated by the possibility of just giving the money back).

But if there is a substantial burden, then I don’t see how the 
government would have a sufficiently compelling interest in ensuring basic 
medical care and lifesaving measures for insureds that don’t want those 
measures -- or how denying the policy would be “essential to further” that 
interest (the language of the Missouri RFRA).  If the government really wants 
to provide such medical care and lifesaving measures to, for instance, those 
who at first decline the policy but then change their mind, it could do so 
without having the people buy such policies.

Eugene

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Tracey, Timothy
Sent: Thursday, August 15, 2013 8:53 AM
To: Law & Religion issues for Law Academics; Len
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate

I hope that neither you nor Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.

Timothy J. Tracey
Associate Professor of Law
Ave Maria School of Law


On August 15, 2013 at 11:42:29 AM, Len 
(campquest...@comcast.net<mailto:campquest...@comcast.net>) wrote:

Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer.









From: "Eduardo Penalver" mailto:penal...@uchicago.edu>>
To: "Law & Religion issues for Law Academics" 
mailto:religionlaw@lists.ucla.edu>>
Sent: Thursday, August 15, 2013 11:06:49 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate
Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception.

Eduardo





From: "Friedman, Howard M." 
mailto:howard.fried...@utoledo.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Thu, 15 Aug 2013 13:52:52 +
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: New Twist On Challenge to ACA Contraceptive Mandate

In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html

Howard Friedman
___ To post, send message to 
Religionlaw@lists.ucla.edu<mailto: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 
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Web archives; and list members can (rightly or wrongly) forward the messages to 
others.
___
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Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu>
To subscribe, unsubscribe, change options, or get password, see 
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CONFIDENTIALITY NOTICE: This e-mail transmission is the property of Ave Maria 
School of Law and may contain confidential or privileged information. It is 
intended only for the addressee(s) named ab

Re: New Twist On Challenge to ACA Contraceptive Mandate

[Tracey, Timothy]

I hope that neither you nor Eduardo are serious in your responses.  The 
government's interest in ensuring basic medical care and lifesaving measures is 
significantly different than whatever interest the government has in forcing 
religious organizations to supply coverage of contraception, sterilizations, 
and abortion.  The government obviously has a compelling interest in the former 
but certainly not in the latter.

Timothy J. Tracey
Associate Professor of Law
Ave Maria School of Law


On August 15, 2013 at 11:42:29 AM, Len (campquest...@comcast.net) wrote:

Next up, a lawsuit seeking on religious liberty grounds the ability to obtain a 
health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer.









From: "Eduardo Penalver" 
To: "Law & Religion issues for Law Academics" 
Sent: Thursday, August 15, 2013 11:06:49 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate


Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception.

Eduardo





From: "Friedman, Howard M." 
mailto:howard.fried...@utoledo.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Thu, 15 Aug 2013 13:52:52 +
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: New Twist On Challenge to ACA Contraceptive Mandate

In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html

Howard Friedman
___ To post, send message to 
Religionlaw@lists.ucla.edu<mailto: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 
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others.
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Re: New Twist On Challenge to ACA Contraceptive Mandate

[Len]

Next up, a lawsuit  seeking on religious liberty grounds the ability to obtain 
a health insurance policy from his employer that does not cover vaccinations or 
other medications, or surgery, but only covers healing prayer. 







- Original Message -


From: "Eduardo Penalver"  
To: "Law & Religion issues for Law Academics"  
Sent: Thursday, August 15, 2013 11:06:49 AM 
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 




Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception. 


Eduardo 












From: "Friedman, Howard M." < howard.fried...@utoledo.edu > 
Reply-To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu 
> 
Date: Thu, 15 Aug 2013 13:52:52 + 
To: Law & Religion issues for Law Academics < religionlaw@lists.ucla.edu > 
Subject: New Twist On Challenge to ACA Contraceptive Mandate 





In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog--  
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html
 


Howard Friedman ___ To post, send 
message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change 
options, or get password, see 
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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. 
___ 
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Re: New Twist On Challenge to ACA Contraceptive Mandate

[Ed Darrell]

All he needs to do is decline the policy offered.  This is not a case in 
controversy.  I predict dismissal.

Ed Darrell
Dallas





 From: "Penalver, Eduardo" 
To: Law & Religion issues for Law Academics  
Sent: Thursday, August 15, 2013 10:06 AM
Subject: Re: New Twist On Challenge to ACA Contraceptive Mandate 
 


Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception.

Eduardo




From: "Friedman, Howard M." 
Reply-To: Law & Religion issues for Law Academics 
Date: Thu, 15 Aug 2013 13:52:52 +
To: Law & Religion issues for Law Academics 
Subject: New Twist On Challenge to ACA Contraceptive Mandate 


 
In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html
 

Howard Friedman
___ 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. 
___
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Re: New Twist On Challenge to ACA Contraceptive Mandate

[Penalver, Eduardo]

Next up, a lawsuit demanding to be paid in currency that can't be used to buy 
contraception.

Eduardo





From: "Friedman, Howard M." 
mailto:howard.fried...@utoledo.edu>>
Reply-To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Date: Thu, 15 Aug 2013 13:52:52 +
To: Law & Religion issues for Law Academics 
mailto:religionlaw@lists.ucla.edu>>
Subject: New Twist On Challenge to ACA Contraceptive Mandate

In an interesting new lawsuit, a Missouri legislator (suing as an employee of 
the state) seeks on religious liberty grounds the ability to obtain a health 
insurance policy from his employer that does not cover contraception, 
sterilization or abortifacients.  He particularly objects to coverage of these 
in his policy for his 3 daughters, age 12, 18 and 19.  More on Religion Clause 
blog-- 
http://religionclause.blogspot.com/2013/08/new-contraceptive-coverage-challenge.html

Howard Friedman
___ To post, send message to 
Religionlaw@lists.ucla.edu To subscribe, 
unsubscribe, change options, or get password, see 
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others.
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