Re: Posner on oral advocacy in religion caseesri
Yes, Scott, that is one part of ND's claim -- that the form not only notifies the government and Aetna/Meritain of ND's objection, but also sets in motion, or triggers or enables Aetna and Meritain to offer independent coverage. As I've discussed at greater length here -- http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html-- that argument seems to me to prove way too much, as it might be raised in any number of cases (exemptions from the draft; judicial recusal; a pharmacist who refuses to dispense a drug) in which the objector's objection is what triggers the obligation of someone else to do what the objector will not. And as to the argument that the certification form is technically an instrument of ND's own plan, I'm not sure why that would matter in the complicity analysis but, in any event, that's why Posner asked the hypo in which that is not the case . . . and counsel said ND would still have an objection, even if the certification were sent directly to the USG and were not a plan instrument. On Fri, Feb 14, 2014 at 4:21 PM, Scot Zentner zent...@csusb.edu wrote: I am not sure, but is it not the case that ND's precise claim is that the exemption part of the form is not the problem, but the fact that the form is also an instrument that sets in motion the provision of contraceptive services by the third party? So ND's objection is that the employee would not have contraceptives but for the provision of insurance by ND and its signing of the form. Scot Zentner Professor Political Science CSU, San Bernardino -- *From:* conlawprof-boun...@lists.ucla.edu [ conlawprof-boun...@lists.ucla.edu] on behalf of Marci Hamilton [ hamilton.ma...@gmail.com] *Sent:* Friday, February 14, 2014 12:46 PM *To:* Marty Lederman *Cc:* conlawp...@lists.ucla.edu *Subject:* Re: Posner on oral advocacy in religion caseesri I don't want to put too fine a point on this, but this entire line of reasoning by ND is utter insanity. The good news is that the religious groups have gotten too clever by half and awakened the women and civil rights groups in the country who did not understand how RFRA operates against the vulnerable. It is, however, the natural end point of the likelihood that believers and institutions would try to exploit RFRA to its absolute maximum limits. Every group/individual is likely to exploit the power they have. That is one of the most important principles the US is built on. But the people, the Constitution, and the state constitutions are supposed to guard against such overreaching. If this is what RFRA requires, it is a violation of the Establishment Clause. All that is left is for someone to claim that their religious faith is substantially burdened when they think about their neighbor/student/employee using a condom (preventing conception), and condoms should not be approved for sale by the FDA because of the burden they are experiencing. If I were on the other side in the ND case, I would suggest a sincerity challenge, and depositions of every higher-up at ND to find out if they have ever used birth control. Marci ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Posner on oral advocacy in religion caseesri
Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which *everyone *is entitled? Likewise, under the ACA, virtually *all *Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that *must* include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, *just as virtually every other plan must*. Notre Dame, then, is endeavoring to deny its employees and students what *all other employees and students *are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, davidebernst...@aol.com wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Posner on oral advocacy in religion caseesri
I think women do have a right here, which is the right not to be discriminated against on the basis of gender. We are way outside the bounds of Hosanna-Tabor, so the right not to be discriminated against based on gender stands. Marty's point is correct that there is global equal treatment here, which undermines ND's arguments based on precedent and common sense. But there is also a more specific equality argument. This is an attempt to force women to pay for their medical care, which is specific to women, while men are covered. As everyone knows, it's not simply medical care to avoid pregnancy, but also medical care for many ailments (some very painful), which require hormonal treatment. Whether it is $5/year or $2,000/year, misses the point. The govt's interest in ensuring that women, as a class, are not shortchanged in the health care system to their medical detriment must trump the de minimis burden on ND. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: David Bernstein davidebernst...@aol.com; Law Religion issues for Law Academics religionlaw@lists.ucla.edu Cc: conlawprof conlawp...@lists.ucla.edu; zentner zent...@csusb.edu Sent: Fri, Feb 14, 2014 5:34 pm Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, davidebernst...@aol.com wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Posner on oral advocacy in religion caseesri
While I am sympathetic to several of the arguments raised on Hobby Lobby's (and Notre Dame's) behalf in these various cases, the argument that people are not burdened in a legally cognizable way if they lose benefits to which they would otherwise be entitled is not persuasive to me. As a general matter, I think the loss of benefits is a cognizable burden both for Establishment Clause and Free Exercise purposes. Thus denying an individual a generally available benefit to which they would otherwise be entitled to accommodate some other person's religious practice is a burden for Establishment Clause purposes just as denying an individual a generally available benefit to which they would otherwise be entitled if they obey the dictates of their faith is a burden for Free Exercise purposes (e.g. Sherbert v. Verner). I remain unconvinced that a finding in favor of plaintiffs in these RFRA suits requires the loss of such benefits. And, of course, the existence of a burden does not necessarily mean that it cannot be justified and is constitutionally impermissible. But these are very different arguments than one suggesting that the loss or denial of benefits does not constitute a burden and can be ignored in the analysis. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Friday, February 14, 2014 2:32 PM To: David Bernstein; Law Religion issues for Law Academics Cc: conlawp...@lists.ucla.edu; zent...@csusb.edu Subject: Re: Posner on oral advocacy in religion caseesri Who's talking about a deprivation of liberty, and why should that matter? If you didn't receive social security benefits because your employer had a religious reason for refusing to pay into the system, would you not be injured, since social security is now something to which everyone is entitled? Likewise, under the ACA, virtually all Americans are now entitled to obtain affordable insurance, without regard to preexisting conditions, etc. And that new universal benefit is the right to obtain an insurance plan that must include certain services that you can receive without cost (e.g., no co-pay), such as immunizations, colorectal cancer screening, pediatric preventive care, and contraceptive services (as well as many others). You obtain these benefits regardless of the source of your insurance plan -- whether it be through Medicare, or Medicaid, or through a plan on an exchange . . . or via an employer-provided plan. No employer is required to provide a plan, but if you do provide one, it must include cost-free reimbursement for such services, just as virtually every other plan must. Notre Dame, then, is endeavoring to deny its employees and students what all other employees and students are entitled to, namely, an affordable plan that includes reimbursement for the whole array of required services. On Fri, Feb 14, 2014 at 5:12 PM, davidebernst...@aol.commailto:davidebernst...@aol.com wrote: Allow me to point out, given the tenor of some recent comments, that regardless of the outcome of this case, Notre Dame can't and won't stop anyone from buying and using contraceptives--they just wouldn't be covered by their health insurance. And given that no one is forced to work for or be a student at Notre Dame, all this would really means is that when one is deciding whether to be a student at or work for Notre Dame, one would do so with the knowledge that contraceptive coverage isn't available. If you're contraceptives are going to cots, say, $400 a year, you just add that in to the cost of your tuition or deduct that from your expected salary. I'm not seeing any great deprivation of liberty under those circumstances. ___ To post, send message to conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to conlawp...@lists.ucla.edumailto:conlawp...@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin
