The nonprofit contraception services cases

[Marty Lederman]

Another post, this one about the nonprofit cases that have now wound their
way to the Court . . .

http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html


On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman wrote:

> Since no one else has mentioned it, I will:
>
> Eugene recently published a remarkable series of posts on the case -- so
> much there that virtually everyone on this listserv is sure to agree with
> some arguments and disagree with others.  It's an amazing public service,
> whatever one thinks of the merits.  He and I turned the posts into a
> single, 53-page (single-spaced!) Word document for your convenience:
>
> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>
> I've just started my own series of posts on the case on Balkinization --
> links to the first three below.  The second is about the thorny
> contraception/"abortifacient" issue (nominally) in play in the two cases
> the Court granted.  In the third post, I endeavor to explain that the case
> is fundamentally different from what all the courts and plaintiffs (and
> press) have assumed, because there is in fact no "employer mandate" to
> provide contraception coverage.
>
> http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
>
>
> http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
>
>
> http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
>
> Thanks to those of you who have already offered very useful provocations
> and arguments on-list; I'd welcome further reactions, of course.
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The nonprofit contraception services cases

[Marty Lederman]

The government's brief in *Little Sisters*:

http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html


On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman wrote:

> Another post, this one about the nonprofit cases that have now wound their
> way to the Court . . .
>
>
> http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>
>
> On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman 
> wrote:
>
>> Since no one else has mentioned it, I will:
>>
>> Eugene recently published a remarkable series of posts on the case -- so
>> much there that virtually everyone on this listserv is sure to agree with
>> some arguments and disagree with others.  It's an amazing public service,
>> whatever one thinks of the merits.  He and I turned the posts into a
>> single, 53-page (single-spaced!) Word document for your convenience:
>>
>> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>>
>> I've just started my own series of posts on the case on Balkinization --
>> links to the first three below.  The second is about the thorny
>> contraception/"abortifacient" issue (nominally) in play in the two cases
>> the Court granted.  In the third post, I endeavor to explain that the case
>> is fundamentally different from what all the courts and plaintiffs (and
>> press) have assumed, because there is in fact no "employer mandate" to
>> provide contraception coverage.
>>
>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
>>
>>
>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
>>
>>
>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
>>
>> Thanks to those of you who have already offered very useful provocations
>> and arguments on-list; I'd welcome further reactions, of course.
>>
>
>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The nonprofit contraception services cases

[Ira Lupu]

Why don't all these religious nonprofits choose Christian Brothers Services as 
their health insurer?  That way, certification or not, the employees will not 
receive the services to which the employer objects?  Something is missing from 
this narrative.


Sent from my iPhone

> On Jan 3, 2014, at 10:56 AM, Marty Lederman  wrote:
> 
> The government's brief in Little Sisters:
> 
> http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
> 
> 
>> On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman  
>> wrote:
>> Another post, this one about the nonprofit cases that have now wound their 
>> way to the Court . . .
>> 
>> http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>> 
>> 
>>> On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman  
>>> wrote:
>>> Since no one else has mentioned it, I will:  
>>> 
>>> Eugene recently published a remarkable series of posts on the case -- so 
>>> much there that virtually everyone on this listserv is sure to agree with 
>>> some arguments and disagree with others.  It's an amazing public service, 
>>> whatever one thinks of the merits.  He and I turned the posts into a 
>>> single, 53-page (single-spaced!) Word document for your convenience:
>>> 
>>> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>>> 
>>> I've just started my own series of posts on the case on Balkinization -- 
>>> links to the first three below.  The second is about the thorny 
>>> contraception/"abortifacient" issue (nominally) in play in the two cases 
>>> the Court granted.  In the third post, I endeavor to explain that the case 
>>> is fundamentally different from what all the courts and plaintiffs (and 
>>> press) have assumed, because there is in fact no "employer mandate" to 
>>> provide contraception coverage.
>>> 
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
>>> 
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
>>> 
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
>>> 
>>> Thanks to those of you who have already offered very useful provocations 
>>> and arguments on-list; I'd welcome further reactions, of course.
> 
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The nonprofit contraception services cases

[Marty Lederman]

They will -- the government realizes that its plan is undermined and is 
reassessing

Sent from my iPhone

On Jan 3, 2014, at 12:08 PM, Ira Lupu  wrote:

> Why don't all these religious nonprofits choose Christian Brothers Services 
> as their health insurer?  That way, certification or not, the employees will 
> not receive the services to which the employer objects?  Something is missing 
> from this narrative.
> 
> 
> Sent from my iPhone
> 
> On Jan 3, 2014, at 10:56 AM, Marty Lederman  wrote:
> 
>> The government's brief in Little Sisters:
>> 
>> http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
>> 
>> 
>> On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman  
>> wrote:
>>> Another post, this one about the nonprofit cases that have now wound their 
>>> way to the Court . . .
>>> 
>>> http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>>> 
>>> 
>>> On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman  
>>> wrote:
 Since no one else has mentioned it, I will:  
 
 Eugene recently published a remarkable series of posts on the case -- so 
 much there that virtually everyone on this listserv is sure to agree with 
 some arguments and disagree with others.  It's an amazing public service, 
 whatever one thinks of the merits.  He and I turned the posts into a 
 single, 53-page (single-spaced!) Word document for your convenience:
 
 www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
 
 I've just started my own series of posts on the case on Balkinization -- 
 links to the first three below.  The second is about the thorny 
 contraception/"abortifacient" issue (nominally) in play in the two cases 
 the Court granted.  In the third post, I endeavor to explain that the case 
 is fundamentally different from what all the courts and plaintiffs (and 
 press) have assumed, because there is in fact no "employer mandate" to 
 provide contraception coverage.
 
 http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
 
 http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
 
 http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
 
 Thanks to those of you who have already offered very useful provocations 
 and arguments on-list; I'd welcome further reactions, of course.
>> 
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>> 
>> Please note that messages sent to this large list cannot be viewed as 
>> private.  Anyone can subscribe to the list and read messages that are 
>> posted; people can read the Web archives; and list members can (rightly or 
>> wrongly) forward the messages to others.
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The nonprofit contraception services cases

[Marci Hamilton]

Marty-- could you please elaborate on your response?  I am not following this 
exchange

Thanks--
Marci

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



On Jan 3, 2014, at 12:43 PM, Marty Lederman  wrote:

> They will -- the government realizes that its plan is undermined and is 
> reassessing
> 
> Sent from my iPhone
> 
> On Jan 3, 2014, at 12:08 PM, Ira Lupu  wrote:
> 
>> Why don't all these religious nonprofits choose Christian Brothers Services 
>> as their health insurer?  That way, certification or not, the employees will 
>> not receive the services to which the employer objects?  Something is 
>> missing from this narrative.
>> 
>> 
>> Sent from my iPhone
>> 
>> On Jan 3, 2014, at 10:56 AM, Marty Lederman  wrote:
>> 
>>> The government's brief in Little Sisters:
>>> 
>>> http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
>>> 
>>> 
>>> On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman  
>>> wrote:
 Another post, this one about the nonprofit cases that have now wound their 
 way to the Court . . .
 
 http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
 
 
 On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman  
 wrote:
> Since no one else has mentioned it, I will:  
> 
> Eugene recently published a remarkable series of posts on the case -- so 
> much there that virtually everyone on this listserv is sure to agree with 
> some arguments and disagree with others.  It's an amazing public service, 
> whatever one thinks of the merits.  He and I turned the posts into a 
> single, 53-page (single-spaced!) Word document for your convenience:
> 
> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
> 
> I've just started my own series of posts on the case on Balkinization -- 
> links to the first three below.  The second is about the thorny 
> contraception/"abortifacient" issue (nominally) in play in the two cases 
> the Court granted.  In the third post, I endeavor to explain that the 
> case is fundamentally different from what all the courts and plaintiffs 
> (and press) have assumed, because there is in fact no "employer mandate" 
> to provide contraception coverage.
> 
> http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
> 
> http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
> 
> http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
> 
> Thanks to those of you who have already offered very useful provocations 
> and arguments on-list; I'd welcome further reactions, of course.
>>> 
>>> ___
>>> To post, send message to Religionlaw@lists.ucla.edu
>>> To subscribe, unsubscribe, change options, or get password, see 
>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>>> 
>>> Please note that messages sent to this large list cannot be viewed as 
>>> private.  Anyone can subscribe to the list and read messages that are 
>>> posted; people can read the Web archives; and list members can (rightly or 
>>> wrongly) forward the messages to others.
>> ___
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see 
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>> 
>> Please note that messages sent to this large list cannot be viewed as 
>> private.  Anyone can subscribe to the list and read messages that are 
>> posted; people can read the Web archives; and list members can (rightly or 
>> wrongly) forward the messages to others.
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web archives; and list members can (rightly or wrongly) 
> forward the messages to others.
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The nonprofit contraception services cases

[Marty Lederman]

I meant that shorthand only to repeat what I wrote in my post:

The *Little Sisters* case reveals a lacuna in the government's "secondary
accommodation" regulation that the government itself presumably did not
anticipate--namely, that the regulation does not guarantee contraception
coverage for female employees where (i) their employer is a nonprofit
religious organization that objects to such coverage; (ii) the employer
self-insures; (iii) the health plan is a "church plan"; and (iv) the
third-party administrator of the church plan itself objects to providing
such coverage.  The government represented to the district court in *Little
Sisters *that it "continues to consider potential options to fully and
appropriately extend the consumer protections provided by the regulations
to self-insured church plans."  If and when the government amends its
regulations to deal with such a situation, perhaps the *Little
Sisters*case will look more like the *Notre
Dame* case.  But in the meantime, the Little Sisters' employees would not
receive contraception coverage if the Little Sisters were to make the
self-certification of their objection.


On Fri, Jan 3, 2014 at 1:41 PM, Marci Hamilton  wrote:

> Marty-- could you please elaborate on your response?  I am not following
> this exchange
>
> Thanks--
> Marci
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Jan 3, 2014, at 12:43 PM, Marty Lederman 
> wrote:
>
> They will -- the government realizes that its plan is undermined and is
> reassessing
>
> Sent from my iPhone
>
> On Jan 3, 2014, at 12:08 PM, Ira Lupu  wrote:
>
> Why don't all these religious nonprofits choose Christian Brothers
> Services as their health insurer?  That way, certification or not, the
> employees will not receive the services to which the employer objects?
>  Something is missing from this narrative.
>
>
> Sent from my iPhone
>
> On Jan 3, 2014, at 10:56 AM, Marty Lederman 
> wrote:
>
> The government's brief in *Little Sisters*:
>
> http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
>
>
> On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman 
> wrote:
>
>> Another post, this one about the nonprofit cases that have now wound
>> their way to the Court . . .
>>
>>
>> http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>>
>>
>> On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman > > wrote:
>>
>>> Since no one else has mentioned it, I will:
>>>
>>> Eugene recently published a remarkable series of posts on the case -- so
>>> much there that virtually everyone on this listserv is sure to agree with
>>> some arguments and disagree with others.  It's an amazing public service,
>>> whatever one thinks of the merits.  He and I turned the posts into a
>>> single, 53-page (single-spaced!) Word document for your convenience:
>>>
>>> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>>>
>>> I've just started my own series of posts on the case on Balkinization --
>>> links to the first three below.  The second is about the thorny
>>> contraception/"abortifacient" issue (nominally) in play in the two cases
>>> the Court granted.  In the third post, I endeavor to explain that the case
>>> is fundamentally different from what all the courts and plaintiffs (and
>>> press) have assumed, because there is in fact no "employer mandate" to
>>> provide contraception coverage.
>>>
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
>>>
>>>
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
>>>
>>>
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
>>>
>>> Thanks to those of you who have already offered very useful provocations
>>> and arguments on-list; I'd welcome further reactions, of course.
>>>
>>
>>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private.  Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, u

Re: The nonprofit contraception services cases

[Will Esser]

And if the government admits that the services are not going to be provided by 
either the Little Sisters directly or by the Christian Brother Services as TPA, 
why is the government so vigorously opposing the issuance of an injunction?  
Why force the Little Sisters to execute a certification that has no practical 
effect of any kind?  It seems like the prudent and practical thing for the 
government would be to simply consent to the injunction, rather than spending 
significant taxpayer dollars on a case which (given its specific facts) does 
not advance any governmental interest.
 
Will

Will Esser 
Charlotte, North Carolina
 


From: Ira Lupu 
To: Law & Religion issues for Law Academics  
Cc: Law & Religion issues for Law Academics  
Sent: Friday, January 3, 2014 12:08 PM
Subject: Re: The nonprofit contraception services cases



Why don't all these religious nonprofits choose Christian Brothers Services as 
their health insurer?  That way, certification or not, the employees will not 
receive the services to which the employer objects?  Something is missing from 
this narrative.


Sent from my iPhone

On Jan 3, 2014, at 10:56 AM, Marty Lederman  wrote:


The government's brief in Little Sisters:
>
>http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
>
>
>
>
>On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman  
>wrote:
>
>Another post, this one about the nonprofit cases that have now wound their way 
>to the Court . . .
>>
>>
>>http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>>
>>
>>
>>
>>On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman  
>>wrote:
>>
>>Since no one else has mentioned it, I will:  
>>>
>>>Eugene recently published a remarkable series of posts on the case -- so 
>>>much there that virtually everyone on this listserv is sure to agree with 
>>>some arguments and disagree with others.  It's an amazing public service, 
>>>whatever one thinks of the merits.  He and I turned the posts into a single, 
>>>53-page (single-spaced!) Word document for your convenience:
>>>
>>>www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>>>
>>>I've just started my own series of posts on the case on Balkinization -- 
>>>links to the first three below.  The second is about the thorny 
>>>contraception/"abortifacient" issue (nominally) in play in the two cases the 
>>>Court granted.  In the third post, I endeavor to explain that the case is 
>>>fundamentally different from what all the courts and plaintiffs (and press) 
>>>have assumed, because there is in fact no "employer mandate" to provide 
>>>contraception coverage.
>>>
>>>
>>>http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
>>>
>>>http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
>>>
>>>http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
>>>
>>>Thanks to those of you who have already offered very useful provocations and 
>>>arguments on-list; I'd welcome further reactions, of course.
>>
>
___
>To post, send message to Religionlaw@lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
>Please note that messages sent to this large list cannot be viewed as private. 
> Anyone can subscribe to the list and read messages that are posted; people 
>can read the Web archives; and list members can (rightly or wrongly) forward 
>the messages to others.

___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

RE: The nonprofit contraception services cases

[Rick Garnett]

Dear colleagues,

I would recommend Prof. Kevin Walsh’s post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty kicked off this thread a few days ago.  Kevin’s 
post is called “What does the form that the government insists the Little 
Sisters of the Poor must sign actually do?”

Of course, others have moved from the specific issues that Marty raised to more 
general (and always important) conversations about RFRA’s constitutionality and 
the moral desirability of Yoder, but I wanted to ask just a few things with 
respect to Greg Lipper’s report that Americans United for Separation of Church 
& State has filed a motion seeking to intervene in the University of Notre 
Dame’s lawsuit challenging the mandate.  (Although I am blessed to teach at 
Notre Dame, I have no role in the University’s lawsuit.)
https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens

I understand (though I do not agree with) the claim that, because Notre Dame is 
a large employer in the area, its right to refuse to provide coverage for 
contraceptives (in cases where a physician has not indicated that the 
contraceptives are medically indicated) to employees who do not embrace the 
Catholic Church’s teachings on sexual morality and abortion is limited.  That 
is, Notre Dame’s role and place in the market limits its right to say to 
employees “this is who we are, and if you want to work for us, you should 
expect that who we are will be relevant to the terms of our arrangement with 
you.”

With respect to students, though, it is harder for me to see why Notre Dame 
should not be able to say to prospective students (as Notre Dame does), “This 
is who we are.  If you come here – and you are welcome to, but you don’t have 
to – you should know that our character, mission, aspirations, and values will 
shape the terms of our arrangement with you.”   Is it the view of AU, or of 
others, that the Establishment Clause (or anything else) prevents the 
government from exempting a Catholic (or other mission-oriented) educational 
institution from an otherwise general rule in order to allow the institution to 
say (something like) this to students and the broader world – again, assuming 
that students who get into Notre Dame (a) have plenty of options and (b) know 
full well that Notre Dame aspires to a meaningfully Catholic character?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

Blogs:

Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://mirrorofjustice.blogs.com/>

Twitter:  @RickGarnett<https://twitter.com/RickGarnett>

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Friday, January 03, 2014 1:42 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

Marty-- could you please elaborate on your response?  I am not following this 
exchange

Thanks--
Marci

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



On Jan 3, 2014, at 12:43 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
They will -- the government realizes that its plan is undermined and is 
reassessing

Sent from my iPhone

On Jan 3, 2014, at 12:08 PM, Ira Lupu 
mailto:icl...@law.gwu.edu>> wrote:
Why don't all these religious nonprofits choose Christian Brothers Services as 
their health insurer?  That way, certification or not, the employees will not 
receive the services to which the employer objects?  Something is missing from 
this narrative.


Sent from my iPhone

On Jan 3, 2014, at 10:56 AM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
The government's brief in Little Sisters:

http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html

On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
Another post, this one about the nonprofit cases that have now wound their way 
to the Court . . .
http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html

On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman 
mailto:lederman.ma...@gmail.com>> wrote:
Since no one else has mentioned it, I will:
Eugene recently published a remarkable series of posts on the case -- so much 
there that virtually everyone on 

Re: The nonprofit contraception services cases

[Marci Hamilton]

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



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



> On Jan 6, 2014, at 2:46 PM, Rick Garnett  wrote:
> 
> Dear colleagues,
>  
> I would recommend Prof. Kevin Walsh’s post (here:  
> http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
>  on the issue with which Marty kicked off this thread a few days ago.  
> Kevin’s post is called “What does the form that the government insists the 
> Little Sisters of the Poor must sign actually do?”
>  
> Of course, others have moved from the specific issues that Marty raised to 
> more general (and always important) conversations about RFRA’s 
> constitutionality and the moral desirability of Yoder, but I wanted to ask 
> just a few things with respect to Greg Lipper’s report that Americans United 
> for Separation of Church & State has filed a motion seeking to intervene in 
> the University of Notre Dame’s lawsuit challenging the mandate.  (Although I 
> am blessed to teach at Notre Dame, I have no role in the University’s 
> lawsuit.)
> https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens
>  
> I understand (though I do not agree with) the claim that, because Notre Dame 
> is a large employer in the area, its right to refuse to provide coverage for 
> contraceptives (in cases where a physician has not indicated that the 
> contraceptives are medically indicated) to employees who do not embrace the 
> Catholic Church’s teachings on sexual morality and abortion is limited.  That 
> is, Notre Dame’s role and place in the market limits its right to say to 
> employees “this is who we are, and if you want to work for us, you should 
> expect that who we are will be relevant to the terms of our arrangement with 
> you.”
>  
> With respect to students, though, it is harder for me to see why Notre Dame 
> should not be able to say to prospective students (as Notre Dame does), “This 
> is who we are.  If you come here – and you are welcome to, but you don’t have 
> to – you should know that our character, mission, aspirations, and values 
> will shape the terms of our arrangement with you.”   Is it the view of AU, or 
> of others, that the Establishment Clause (or anything else) prevents the 
> government from exempting a Catholic (or other mission-oriented) educational 
> institution from an otherwise general rule in order to allow the institution 
> to say (something like) this to students and the broader world – again, 
> assuming that students who get into Notre Dame (a) have plenty of options and 
> (b) know full well that Notre Dame aspires to a meaningfully Catholic 
> character?
>  
> Best,
>  
> Rick
>  
> Richard W. Garnett
> Professor of Law and Concurrent Professor of Political Science
> Director, Program on Church, State & Society
> Notre Dame Law School
> P.O. Box 780
> Notre Dame, Indiana 46556-0780
> 574-631-6981 (w)
> 574-276-2252 (cell)
> rgarn...@nd.edu
>  
> To download my scholarly papers, please visit my SSRN page
>  
> Blogs:
>  
> Prawfsblawg
> Mirror of Justice
>  
> Twitter:  @RickGarnett
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
> Sent: Friday, January 03, 2014 1:42 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: The nonprofit contraception services cases
>  
> Marty-- could you please elaborate on your response?  I am not following this 
> exchange
>  
> Thanks--
> Marci
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton 
>  
>  
> 
> On Jan 3, 2014, at 12:43 PM, Marty Lederman  wrote:
> 
> They will -- the government realizes that its plan is undermined and is 
> reassessing
> 
> Sent from my iPhone
> 
> On Jan 3, 2014, at 12:08 PM, Ira Lupu  wrote:
> 
> Why don't all these religious nonprofits choose Christian Brothers Services 
> as their health insurer?  That way, certification or not, the employees will 
> not receive the services to which the employer objects?  Something is missing 
> from this narrative.
> 
> 
> Sent from my iPhone
> 
> On Jan 3, 2014, at 10:56 AM, Marty Lederman  wrote:
> 
> The government's brief in Little Sisters:
> 
> http://balkin.blogspot.com/2014/01/government-bref-in-little-sist

RE: The nonprofit contraception services cases

[Rick Garnett]

Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

Blogs:

Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://mirrorofjustice.blogs.com/>

Twitter:  @RickGarnett<https://twitter.com/RickGarnett>

From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



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



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh’s post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty kicked off this thread a few days ago.  Kevin’s 
post is called “What does the form that the government insists the Little 
Sisters of the Poor must sign actually do?”

Of course, others have moved from the specific issues that Marty raised to more 
general (and always important) conversations about RFRA’s constitutionality and 
the moral desirability of Yoder, but I wanted to ask just a few things with 
respect to Greg Lipper’s report that Americans United for Separation of Church 
& State has filed a motion seeking to intervene in the University of Notre 
Dame’s lawsuit challenging the mandate.  (Although I am blessed to teach at 
Notre Dame, I have no role in the University’s lawsuit.)
https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens

I understand (though I do not agree with) the claim that, because Notre Dame is 
a large employer in the area, its right to refuse to provide coverage for 
contraceptives (in cases where a physician has not indicated that the 
contraceptives are medically indicated) to employees who do not embrace the 
Catholic Church’s teachings on sexual morality and abortion is limited.  That 
is, Notre Dame’s role and place in the market limits its right to say to 
employees “this is who we are, and if you want to work for us, you should 
expect that who we are will be relevant to the terms of our arrangement with 
you.”

With respect to students, though, it is harder for me to see why Notre Dame 
should not be able to say to prospective students (as Notre Dame does), “This 
is who we are.  If you come here – and you are welcome to, but you don’t have 
to – you should know that our character, mission, aspirations, and values will 
shape the terms of our arrangement with you.”   Is it the view of AU, or of 
others, that the Establishment Clause (or anything else) prevents the 
government from exempting a Catholic (or other mission-oriented) educational 
institution from an otherwise general rule in order to allow the institution to 
say (something like) this to students and the broader world – again, assuming 
that students who get into Notre Dame (a) have plenty of options and (b) know 
full well that Notre Dame aspires to a meaningfully Catholic character?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read

Re: The nonprofit contraception services cases

[Marty Lederman]

And here's a post that (in part) responds to Kevin -- although my principal
point is the *Little Sisters* case is an unimportant sideshow, and that it
won't matter much what the Court does on the emergency motion, in
particular:

http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html

On Rick's new question, I'd need to think some more about it, but I assume
that it would be permissible for Congress *either* to grant N.D. an
exemption from title IX, thereby allowing N.D. to enroll only "practicing"
Catholics . . . *or* to deny N.D. such an exemption.

Moreover, as it stands now, and unless I'm forgetting something, I don't
think anything in the law would prohibit N.D. from requiring enrolling
women to certify that they will not use contraception.  But N.D. of course
does not do so.



On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett  wrote:

> Dear colleagues,
>
>
>
> I would recommend Prof. Kevin Walsh’s post (here:
> http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
> on the issue with which Marty kicked off this thread a few days ago.
> Kevin’s post is called “What does the form that the government insists the
> Little Sisters of the Poor must sign actually do?”
>
>
>
> Of course, others have moved from the specific issues that Marty raised to
> more general (and always important) conversations about RFRA’s
> constitutionality and the moral desirability of Yoder, but I wanted to ask
> just a few things with respect to Greg Lipper’s report that Americans
> United for Separation of Church & State has filed a motion seeking to
> intervene in the University of Notre Dame’s lawsuit challenging the
> mandate.  (Although I am blessed to teach at Notre Dame, I have no role in
> the University’s lawsuit.)
> https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens
>
>
>
> I understand (though I do not agree with) the claim that, because Notre
> Dame is a large employer in the area, its right to refuse to provide
> coverage for contraceptives (in cases where a physician has not indicated
> that the contraceptives are medically indicated) to employees who do not
> embrace the Catholic Church’s teachings on sexual morality and abortion is
> limited.  That is, Notre Dame’s role and place in the market limits its
> right to say to employees “this is who we are, and if you want to work for
> us, you should expect that who we are will be relevant to the terms of our
> arrangement with you.”
>
>
>
> With respect to students, though, it is harder for me to see why Notre
> Dame should not be able to say to prospective students (as Notre Dame
> does), “This is who we are.  If you come here – and you are welcome to, but
> you don’t have to – you should know that our character, mission,
> aspirations, and values will shape the terms of our arrangement with you.”
>   Is it the view of AU, or of others, that the Establishment Clause (or
> anything else) prevents the government from exempting a Catholic (or other
> mission-oriented) educational institution from an otherwise general rule in
> order to allow the institution to say (something like) this to students and
> the broader world – again, assuming that students who get into Notre Dame
> (a) have plenty of options and (b) know full well that Notre Dame aspires
> to a meaningfully Catholic character?
>
>
>
> Best,
>
>
>
> Rick
>
>
>
> Richard W. Garnett
>
> Professor of Law and Concurrent Professor of Political Science
>
> Director, Program on Church, State & Society
>
> Notre Dame Law School
>
> P.O. Box 780
>
> Notre Dame, Indiana 46556-0780
>
> 574-631-6981 (w)
>
> 574-276-2252 (cell)
>
> rgarn...@nd.edu
>
>
>
> To download my scholarly papers, please visit my SSRN 
> page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
>
>
>
> Blogs:
>
>
>
> Prawfsblawg <http://prawfsblawg.blogs.com/>
>
> Mirror of Justice <http://mirrorofjustice.blogs.com/>
>
>
>
> Twitter:  @RickGarnett <https://twitter.com/RickGarnett>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton
> *Sent:* Friday, January 03, 2014 1:42 PM
>
> *To:* Law & Religion issues for Law Academics
> *Cc:* Law & Religion issues for Law Academics
> *Subject:* Re: The nonprofit contraception services cases
>
>
>
> Marty-- could you please elaborate on your response?  I am not following
> this exchange
>
>
>
> Thanks--
>
> Marci

Re: The nonprofit contraception services cases

[Marty Lederman]

Sorry, I should have added that if ND prohibited only women, and not men,
from using contraception, that would violate the title IX prohibition on
sex discrimination.  But a rule that all students must not indulge in
unmarried sex, or in unmarried sex with contraception, might be ok under
current federal law.


On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman wrote:

> And here's a post that (in part) responds to Kevin -- although my
> principal point is the *Little Sisters* case is an unimportant sideshow,
> and that it won't matter much what the Court does on the emergency motion,
> in particular:
>
> http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html
>
> On Rick's new question, I'd need to think some more about it, but I assume
> that it would be permissible for Congress *either* to grant N.D. an
> exemption from title IX, thereby allowing N.D. to enroll only "practicing"
> Catholics . . . *or* to deny N.D. such an exemption.
>
> Moreover, as it stands now, and unless I'm forgetting something, I don't
> think anything in the law would prohibit N.D. from requiring enrolling
> women to certify that they will not use contraception.  But N.D. of course
> does not do so.
>
>
>
> On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett  wrote:
>
>> Dear colleagues,
>>
>>
>>
>> I would recommend Prof. Kevin Walsh’s post (here:
>> http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
>> on the issue with which Marty kicked off this thread a few days ago.
>> Kevin’s post is called “What does the form that the government insists the
>> Little Sisters of the Poor must sign actually do?”
>>
>>
>>
>> Of course, others have moved from the specific issues that Marty raised
>> to more general (and always important) conversations about RFRA’s
>> constitutionality and the moral desirability of Yoder, but I wanted to ask
>> just a few things with respect to Greg Lipper’s report that Americans
>> United for Separation of Church & State has filed a motion seeking to
>> intervene in the University of Notre Dame’s lawsuit challenging the
>> mandate.  (Although I am blessed to teach at Notre Dame, I have no role in
>> the University’s lawsuit.)
>> https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens
>>
>>
>>
>> I understand (though I do not agree with) the claim that, because Notre
>> Dame is a large employer in the area, its right to refuse to provide
>> coverage for contraceptives (in cases where a physician has not indicated
>> that the contraceptives are medically indicated) to employees who do not
>> embrace the Catholic Church’s teachings on sexual morality and abortion is
>> limited.  That is, Notre Dame’s role and place in the market limits its
>> right to say to employees “this is who we are, and if you want to work for
>> us, you should expect that who we are will be relevant to the terms of our
>> arrangement with you.”
>>
>>
>>
>> With respect to students, though, it is harder for me to see why Notre
>> Dame should not be able to say to prospective students (as Notre Dame
>> does), “This is who we are.  If you come here – and you are welcome to, but
>> you don’t have to – you should know that our character, mission,
>> aspirations, and values will shape the terms of our arrangement with you.”
>>   Is it the view of AU, or of others, that the Establishment Clause (or
>> anything else) prevents the government from exempting a Catholic (or other
>> mission-oriented) educational institution from an otherwise general rule in
>> order to allow the institution to say (something like) this to students and
>> the broader world – again, assuming that students who get into Notre Dame
>> (a) have plenty of options and (b) know full well that Notre Dame aspires
>> to a meaningfully Catholic character?
>>
>>
>>
>> Best,
>>
>>
>>
>> Rick
>>
>>
>>
>> Richard W. Garnett
>>
>> Professor of Law and Concurrent Professor of Political Science
>>
>> Director, Program on Church, State & Society
>>
>> Notre Dame Law School
>>
>> P.O. Box 780
>>
>> Notre Dame, Indiana 46556-0780
>>
>> 574-631-6981 (w)
>>
>> 574-276-2252 (cell)
>>
>> rgarn...@nd.edu
>>
>>
>>
>> To download my scholarly papers, please visit my SSRN 
>> page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=

Re: The nonprofit contraception services cases

[Marci Hamilton]

Doesn't it depend in some way on how much 
federal money it receives?   Again, I am
simply asking.

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



> On Jan 6, 2014, at 3:15 PM, Rick Garnett  wrote:
> 
> Notre Dame is allowed (I assume – again, I am just an employee and am not 
> involved in admissions or with the University Counsel’s work) to take 
> religion, and many other factors, into account when building its classes, 
> sure.  Does anyone believe that Notre Dame should *not* be able to conduct 
> admissions so as to, for example, admit classes that are predominantly 
> Catholic?
>  
> Best,
>  
> Rick
>  
> Richard W. Garnett
> Professor of Law and Concurrent Professor of Political Science
> Director, Program on Church, State & Society
> Notre Dame Law School
> P.O. Box 780
> Notre Dame, Indiana 46556-0780
> 574-631-6981 (w)
> 574-276-2252 (cell)
> rgarn...@nd.edu
>  
> To download my scholarly papers, please visit my SSRN page
>  
> Blogs:
>  
> Prawfsblawg
> Mirror of Justice
>  
> Twitter:  @RickGarnett
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
> Sent: Monday, January 06, 2014 3:08 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: The nonprofit contraception services cases
>  
> This is strictly an informational question-- is Notre Dame allowed to 
> discriminate on the basis of religion in undergraduate admission?
>  
> 
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton 
>  
>  
> 
> On Jan 6, 2014, at 2:46 PM, Rick Garnett  wrote:
> 
> Dear colleagues,
>  
> I would recommend Prof. Kevin Walsh’s post (here:  
> http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
>  on the issue with which Marty kicked off this thread a few days ago.  
> Kevin’s post is called “What does the form that the government insists the 
> Little Sisters of the Poor must sign actually do?”
>  
> Of course, others have moved from the specific issues that Marty raised to 
> more general (and always important) conversations about RFRA’s 
> constitutionality and the moral desirability of Yoder, but I wanted to ask 
> just a few things with respect to Greg Lipper’s report that Americans United 
> for Separation of Church & State has filed a motion seeking to intervene in 
> the University of Notre Dame’s lawsuit challenging the mandate.  (Although I 
> am blessed to teach at Notre Dame, I have no role in the University’s 
> lawsuit.)
> https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens
>  
> I understand (though I do not agree with) the claim that, because Notre Dame 
> is a large employer in the area, its right to refuse to provide coverage for 
> contraceptives (in cases where a physician has not indicated that the 
> contraceptives are medically indicated) to employees who do not embrace the 
> Catholic Church’s teachings on sexual morality and abortion is limited.  That 
> is, Notre Dame’s role and place in the market limits its right to say to 
> employees “this is who we are, and if you want to work for us, you should 
> expect that who we are will be relevant to the terms of our arrangement with 
> you.”
>  
> With respect to students, though, it is harder for me to see why Notre Dame 
> should not be able to say to prospective students (as Notre Dame does), “This 
> is who we are.  If you come here – and you are welcome to, but you don’t have 
> to – you should know that our character, mission, aspirations, and values 
> will shape the terms of our arrangement with you.”   Is it the view of AU, or 
> of others, that the Establishment Clause (or anything else) prevents the 
> government from exempting a Catholic (or other mission-oriented) educational 
> institution from an otherwise general rule in order to allow the institution 
> to say (something like) this to students and the broader world – again, 
> assuming that students who get into Notre Dame (a) have plenty of options and 
> (b) know full well that Notre Dame aspires to a meaningfully Catholic 
> character?
>  
> Best,
>  
> Rick
>  
> Richard W. Garnett
> Professor of Law and Concurrent Professor of Political Science
> Director, Program on Church, State & Society
> Notre Dame Law School
> P.O. Box 780
> Notre Dame, Indiana 46556-0780
> 574-631-6981 (w)
> 

Re: The nonprofit contraception services cases

[Marci Hamilton]

to Notre Dame 
>>> (a) have plenty of options and (b) know full well that Notre Dame aspires 
>>> to a meaningfully Catholic character?
>>> 
>>>  
>>> 
>>> Best,
>>> 
>>>  
>>> 
>>> Rick
>>> 
>>>  
>>> 
>>> Richard W. Garnett
>>> 
>>> Professor of Law and Concurrent Professor of Political Science
>>> 
>>> Director, Program on Church, State & Society
>>> 
>>> Notre Dame Law School
>>> 
>>> P.O. Box 780
>>> 
>>> Notre Dame, Indiana 46556-0780
>>> 
>>> 574-631-6981 (w)
>>> 
>>> 574-276-2252 (cell)
>>> 
>>> rgarn...@nd.edu
>>> 
>>>  
>>> 
>>> To download my scholarly papers, please visit my SSRN page
>>> 
>>>  
>>> 
>>> Blogs:
>>> 
>>>  
>>> 
>>> Prawfsblawg
>>> 
>>> Mirror of Justice
>>> 
>>>  
>>> 
>>> Twitter:  @RickGarnett
>>> 
>>>  
>>> 
>>> From: religionlaw-boun...@lists.ucla.edu 
>>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
>>> Sent: Friday, January 03, 2014 1:42 PM
>>> 
>>> 
>>> To: Law & Religion issues for Law Academics
>>> Cc: Law & Religion issues for Law Academics
>>> Subject: Re: The nonprofit contraception services cases
>>>  
>>> 
>>> Marty-- could you please elaborate on your response?  I am not following 
>>> this exchange
>>> 
>>>  
>>> 
>>> Thanks--
>>> 
>>> Marci
>>> 
>>> Marci A. Hamilton
>>> 
>>> Verkuil Chair in Public Law
>>> 
>>> Benjamin N. Cardozo Law School
>>> 
>>> Yeshiva University
>>> 
>>> @Marci_Hamilton 
>>> 
>>>  
>>> 
>>>  
>>> 
>>> 
>>> On Jan 3, 2014, at 12:43 PM, Marty Lederman  
>>> wrote:
>>> 
>>> They will -- the government realizes that its plan is undermined and is 
>>> reassessing
>>> 
>>> Sent from my iPhone
>>> 
>>> 
>>> On Jan 3, 2014, at 12:08 PM, Ira Lupu  wrote:
>>> 
>>> Why don't all these religious nonprofits choose Christian Brothers Services 
>>> as their health insurer?  That way, certification or not, the employees 
>>> will not receive the services to which the employer objects?  Something is 
>>> missing from this narrative.
>>> 
>>> 
>>> 
>>> Sent from my iPhone
>>> 
>>> 
>>> On Jan 3, 2014, at 10:56 AM, Marty Lederman  
>>> wrote:
>>> 
>>> The government's brief in Little Sisters:
>>> 
>>> http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
>>> 
>>>  
>>> 
>>> On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman  
>>> wrote:
>>> 
>>> Another post, this one about the nonprofit cases that have now wound their 
>>> way to the Court . . .
>>> 
>>> http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>>> 
>>>  
>>> 
>>> On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman  
>>> wrote:
>>> 
>>> Since no one else has mentioned it, I will: 
>>> 
>>> Eugene recently published a remarkable series of posts on the case -- so 
>>> much there that virtually everyone on this listserv is sure to agree with 
>>> some arguments and disagree with others.  It's an amazing public service, 
>>> whatever one thinks of the merits.  He and I turned the posts into a 
>>> single, 53-page (single-spaced!) Word document for your convenience:
>>> 
>>> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>>> 
>>> I've just started my own series of posts on the case on Balkinization -- 
>>> links to the first three below.  The second is about the thorny 
>>> contraception/"abortifacient" issue (nominally) in play in the two cases 
>>> the Court granted.  In the third post, I endeavor to explain that the case 
>>> is fundamentally different from what all the courts and plaintiffs (and 
>>> press) have assumed, because there is in fact no "employer mandate" to 
>>> provide contraception coverage.
>>> 
>>> 
>>> http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-frami

Re: The nonprofit contraception services cases

[Greg Lipper]

Here’s Rick’s blog post on the Notre Dame case, though I can see why he might 
have been embarrassed to share it here:

http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/americans-uniteds-attempted-intervention-in-notre-dames-hhs-case.html




On Jan 6, 2014, at 3:15 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:

Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

Blogs:

Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://mirrorofjustice.blogs.com/>

Twitter:  @RickGarnett<https://twitter.com/RickGarnett>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



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



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh’s post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty kicked off this thread a few days ago.  Kevin’s 
post is called “What does the form that the government insists the Little 
Sisters of the Poor must sign actually do?”

Of course, others have moved from the specific issues that Marty raised to more 
general (and always important) conversations about RFRA’s constitutionality and 
the moral desirability of Yoder, but I wanted to ask just a few things with 
respect to Greg Lipper’s report that Americans United for Separation of Church 
& State has filed a motion seeking to intervene in the University of Notre 
Dame’s lawsuit challenging the mandate.  (Although I am blessed to teach at 
Notre Dame, I have no role in the University’s lawsuit.)
https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens

I understand (though I do not agree with) the claim that, because Notre Dame is 
a large employer in the area, its right to refuse to provide coverage for 
contraceptives (in cases where a physician has not indicated that the 
contraceptives are medically indicated) to employees who do not embrace the 
Catholic Church’s teachings on sexual morality and abortion is limited.  That 
is, Notre Dame’s role and place in the market limits its right to say to 
employees “this is who we are, and if you want to work for us, you should 
expect that who we are will be relevant to the terms of our arrangement with 
you.”

With respect to students, though, it is harder for me to see why Notre Dame 
should not be able to say to prospective students (as Notre Dame does), “This 
is who we are.  If you come here – and you are welcome to, but you don’t have 
to – you should know that our character, mission, aspirations, and values will 
shape the terms of our arrangement with you.”   Is it the view of AU, or of 
others, that the Establishment Clause (or anything else) prevents the 
government from exempting a Catholic (or other mission-oriented) educational 
institution from an otherwise general rule in order to allow the institution to 
say (something like) this to students and the broader world – again, assuming 
that students who get into Notre Dame (a) have plenty of options and (b) know 
full well that Notre Dame aspires to a meaningfully Catholic character?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
_

Re: The nonprofit contraception services cases

[Greg Lipper]

One further note, related to Marci’s question, and detailed in our intervention 
papers: Notre Dame has emphasized the secular nature of its benefits when in 
its legal interests to do so.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
Clause challenge to public funding of a teacher-training program at Notre Dame, 
the university argued that the benefits that it provides, including health 
insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, 
Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.

And in American Jewish Congress v. Corporation for National & Community 
Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
Establishment Clause challenge to Notre Dame’s receipt of public funds, the 
University argued that purchasing health insurance is “administrative” in 
nature and does not constitute “religious instruction or activity.” Mem. of 
Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part 
A, § 3, para 10.

So whatever else Notre Dame may or may not do to create a religious educational 
environment, presumably it can’t have it both ways – health insurance is either 
a secular expense or involves religious exercise, but it can’t be both at the 
same time.





On Jan 6, 2014, at 3:44 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:

Doesn't it depend in some way on how much
federal money it receives?   Again, I am
simply asking.

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



On Jan 6, 2014, at 3:15 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:

Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

Blogs:

Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://mirrorofjustice.blogs.com/>

Twitter:  @RickGarnett<https://twitter.com/RickGarnett>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



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



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh’s post (here:  
http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
 on the issue with which Marty kicked off this thread a few days ago.  Kevin’s 
post is called “What does the form that the government insists the Little 
Sisters of the Poor must sign actually do?”

Of course, others have moved from the specific issues that Marty raised to more 
general (and always important) conversations about RFRA’s constitutionality and 
the moral desirability of Yoder, but I wanted to ask just a few things with 
respect to Greg Lipper’s report that Americans United for Separation of Church 
& State has filed a motion seeking to intervene in the University of Notre 
Dame’s lawsuit challenging the mandate.  (Although I am blessed to teach at 
Notre Dame, I have no role in the University’s lawsuit.)
https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens

I understand (though I do not agree with) the claim that, because Notre Dame is 
a large employer in the area, its right to refuse to provide coverage for 
contraceptives (in cases where a physician has not indicated that the 
contraceptives are medically indicated) to employees who do not embrace the 
Catholic Church’s teachings on sexual morality and abortion is limited.  That 
is, Notre Dame’s role and place in the market limits its right to say to 

Re: The nonprofit contraception services cases

[Marci Hamilton]

This reminds me of the religious organizations
who tell their employees in writing that they do not discriminate but when they 
get sued for discrimination
argue the ministerial exception. 

   Religious employers appear to be no different from any other in seeking the 
most beneficial position at the
expense of employees or others.   The question
is whether courts will hold them to their
previous statements and positions.

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



> On Jan 6, 2014, at 4:21 PM, Greg Lipper  wrote:
> 
> One further note, related to Marci’s question, and detailed in our 
> intervention papers: Notre Dame has emphasized the secular nature of its 
> benefits when in its legal interests to do so. 
> 
> In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
> Clause challenge to public funding of a teacher-training program at Notre 
> Dame, the university argued that the benefits that it provides, including 
> health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee 
> at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. 
> 
> And in American Jewish Congress v. Corporation for National & Community 
> Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
> Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
> Establishment Clause challenge to Notre Dame’s receipt of public funds, the 
> University argued that purchasing health insurance is “administrative” in 
> nature and does not constitute “religious instruction or activity.” Mem. of 
> Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at 
> Part A, § 3, para 10.
> 
> So whatever else Notre Dame may or may not do to create a religious 
> educational environment, presumably it can’t have it both ways – health 
> insurance is either a secular expense or involves religious exercise, but it 
> can’t be both at the same time.
> 
> 
> 
> 
> 
>> On Jan 6, 2014, at 3:44 PM, Marci Hamilton  wrote:
>> 
>> Doesn't it depend in some way on how much 
>> federal money it receives?   Again, I am
>> simply asking.
>> 
>> Marci A. Hamilton
>> Verkuil Chair in Public Law
>> Benjamin N. Cardozo Law School
>> Yeshiva University
>> @Marci_Hamilton 
>> 
>> 
>> 
>> On Jan 6, 2014, at 3:15 PM, Rick Garnett  wrote:
>> 
>>> Notre Dame is allowed (I assume – again, I am just an employee and am not 
>>> involved in admissions or with the University Counsel’s work) to take 
>>> religion, and many other factors, into account when building its classes, 
>>> sure.  Does anyone believe that Notre Dame should *not* be able to conduct 
>>> admissions so as to, for example, admit classes that are predominantly 
>>> Catholic?
>>>  
>>> Best,
>>>  
>>> Rick
>>>  
>>> Richard W. Garnett
>>> Professor of Law and Concurrent Professor of Political Science
>>> Director, Program on Church, State & Society
>>> Notre Dame Law School
>>> P.O. Box 780
>>> Notre Dame, Indiana 46556-0780
>>> 574-631-6981 (w)
>>> 574-276-2252 (cell)
>>> rgarn...@nd.edu
>>>  
>>> To download my scholarly papers, please visit my SSRN page
>>>  
>>> Blogs:
>>>  
>>> Prawfsblawg
>>> Mirror of Justice
>>>  
>>> Twitter:  @RickGarnett
>>>  
>>> From: religionlaw-boun...@lists.ucla.edu 
>>> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
>>> Sent: Monday, January 06, 2014 3:08 PM
>>> To: Law & Religion issues for Law Academics
>>> Cc: Law & Religion issues for Law Academics
>>> Subject: Re: The nonprofit contraception services cases
>>>  
>>> This is strictly an informational question-- is Notre Dame allowed to 
>>> discriminate on the basis of religion in undergraduate admission?
>>>  
>>> 
>>> 
>>> Marci A. Hamilton
>>> Verkuil Chair in Public Law
>>> Benjamin N. Cardozo Law School
>>> Yeshiva University
>>> @Marci_Hamilton 
>>>  
>>>  
>>> 
>>> On Jan 6, 2014, at 2:46 PM, Rick Garnett  wrote:
>>> 
>>> Dear colleagues,
>>>  
>>> I would recommend Prof. Kevin Walsh’s post (here:  
>>> http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html)
>>>  on the issue wit

Re: The nonprofit contraception services cases

[Marty Lederman]

ion to say (something like) this to students and
>>> the broader world – again, assuming that students who get into Notre Dame
>>> (a) have plenty of options and (b) know full well that Notre Dame aspires
>>> to a meaningfully Catholic character?
>>>
>>>
>>>
>>> Best,
>>>
>>>
>>>
>>> Rick
>>>
>>>
>>>
>>> Richard W. Garnett
>>>
>>> Professor of Law and Concurrent Professor of Political Science
>>>
>>> Director, Program on Church, State & Society
>>>
>>> Notre Dame Law School
>>>
>>> P.O. Box 780
>>>
>>> Notre Dame, Indiana 46556-0780
>>>
>>> 574-631-6981 (w)
>>>
>>> 574-276-2252 (cell)
>>>
>>> rgarn...@nd.edu
>>>
>>>
>>>
>>> To download my scholarly papers, please visit my SSRN 
>>> page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
>>>
>>>
>>>
>>> Blogs:
>>>
>>>
>>>
>>> Prawfsblawg <http://prawfsblawg.blogs.com/>
>>>
>>> Mirror of Justice <http://mirrorofjustice.blogs.com/>
>>>
>>>
>>>
>>> Twitter:  @RickGarnett <https://twitter.com/RickGarnett>
>>>
>>>
>>>
>>> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
>>> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton
>>> *Sent:* Friday, January 03, 2014 1:42 PM
>>>
>>> *To:* Law & Religion issues for Law Academics
>>> *Cc:* Law & Religion issues for Law Academics
>>> *Subject:* Re: The nonprofit contraception services cases
>>>
>>>
>>>
>>> Marty-- could you please elaborate on your response?  I am not following
>>> this exchange
>>>
>>>
>>>
>>> Thanks--
>>>
>>> Marci
>>>
>>> Marci A. Hamilton
>>>
>>> Verkuil Chair in Public Law
>>>
>>> Benjamin N. Cardozo Law School
>>>
>>> Yeshiva University
>>>
>>> @Marci_Hamilton
>>>
>>>
>>>
>>>
>>>
>>>
>>> On Jan 3, 2014, at 12:43 PM, Marty Lederman 
>>> wrote:
>>>
>>> They will -- the government realizes that its plan is undermined and is
>>> reassessing
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On Jan 3, 2014, at 12:08 PM, Ira Lupu  wrote:
>>>
>>> Why don't all these religious nonprofits choose Christian Brothers
>>> Services as their health insurer?  That way, certification or not, the
>>> employees will not receive the services to which the employer objects?
>>>  Something is missing from this narrative.
>>>
>>>
>>>
>>> Sent from my iPhone
>>>
>>>
>>> On Jan 3, 2014, at 10:56 AM, Marty Lederman 
>>> wrote:
>>>
>>> The government's brief in *Little Sisters*:
>>>
>>> http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html
>>>
>>>
>>>
>>> On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman 
>>> wrote:
>>>
>>> Another post, this one about the nonprofit cases that have now wound
>>> their way to the Court . . .
>>>
>>>
>>> http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html
>>>
>>>
>>>
>>> On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman <
>>> lederman.ma...@gmail.com> wrote:
>>>
>>> Since no one else has mentioned it, I will:
>>>
>>> Eugene recently published a remarkable series of posts on the case -- so
>>> much there that virtually everyone on this listserv is sure to agree with
>>> some arguments and disagree with others.  It's an amazing public service,
>>> whatever one thinks of the merits.  He and I turned the posts into a
>>> single, 53-page (single-spaced!) Word document for your convenience:
>>>
>>> www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx
>>>
>>> I've just started my own series of posts on the case on Balkinization --
>>> links to the first three below.  The second is about the thorny
>>> contraception/"abortifacient" issue (nominally) in play in the two cases
>>> the Court granted.  In the third post, I endeavor to explain that the case
>>> is fundamentally different

RE: The nonprofit contraception services cases

[Gaubatz, Derek]

It seems to me that there is a much less nefarious explanation.  In the context 
of those Establishment Clause challenges, it was permissible for a religious 
entity like Notre Dame to receive the government funds so long as they were not 
used for items deemed to be inherently religious activities such as worship or 
instruction.   In saying that the provision of health insurance was a secular 
expense, Notre Dame was merely distinguishing such expenses from those that 
might be spent on things like theological instruction or wine for a mass.   But 
to say that the provision of health insurance is a secular expense, unlike 
worship or instruction, says nothing about whether Notre Dame can and does 
apply its religious beliefs to what type of health insurance it provides.
Moreover, it would also be an “administrative” or “secular” expense (as opposed 
to inherently religious) for Notre Dame to pay for the salary of someone 
running one of its government grant programs, but that doesn’t mean Notre Dame 
can’t apply its religious beliefs and criteria to selecting those that it 
hires.So I think it is fair to say that there can be secular expenses (as 
opposed to inherently religious) under Establishment Clause jurisprudence that 
still involve the exercise of religious beliefs by a religious entity.


From: 
religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton


This reminds me of the religious organizations
who tell their employees in writing that they do not discriminate but when they 
get sued for discrimination
argue the ministerial exception.

   Religious employers appear to be no different from any other in seeking the 
most beneficial position at the
expense of employees or others.   The question
is whether courts will hold them to their
previous statements and positions.

Marci A. Hamilton

On Jan 6, 2014, at 4:21 PM, Greg Lipper mailto:lip...@au.org>> 
wrote:
One further note, related to Marci’s question, and detailed in our intervention 
papers: Notre Dame has emphasized the secular nature of its benefits when in 
its legal interests to do so.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
Clause challenge to public funding of a teacher-training program at Notre Dame, 
the university argued that the benefits that it provides, including health 
insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, 
Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.

And in American Jewish Congress v. Corporation for National & Community 
Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
Establishment Clause challenge to Notre Dame’s receipt of public funds, the 
University argued that purchasing health insurance is “administrative” in 
nature and does not constitute “religious instruction or activity.” Mem. of 
Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part 
A, § 3, para 10.

So whatever else Notre Dame may or may not do to create a religious educational 
environment, presumably it can’t have it both ways – health insurance is either 
a secular expense or involves religious exercise, but it can’t be both at the 
same time.


On Jan 6, 2014, at 3:44 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:

Doesn't it depend in some way on how much
federal money it receives?   Again, I am
simply asking.

Marci A. Hamilton
Verkuil Chair in Public Law


On Jan 6, 2014, at 3:15 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Notre Dame is allowed (I assume – again, I am just an employee and am not 
involved in admissions or with the University Counsel’s work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
___
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Re: The nonprofit contraception services cases

[Marci Hamilton]

Ok-- I am confused.  Is Derek saying federal funds subsidiz Notre Dame's health 
care system?   

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



> On Jan 6, 2014, at 8:45 PM, "Gaubatz, Derek"  wrote:
> 
> It seems to me that there is a much less nefarious explanation.  In the 
> context of those Establishment Clause challenges, it was permissible for a 
> religious entity like Notre Dame to receive the government funds so long as 
> they were not used for items deemed to be inherently religious activities 
> such as worship or instruction.   In saying that the provision of health 
> insurance was a secular expense, Notre Dame was merely distinguishing such 
> expenses from those that might be spent on things like theological 
> instruction or wine for a mass.   But to say that the provision of health 
> insurance is a secular expense, unlike worship or instruction, says nothing 
> about whether Notre Dame can and does apply its religious beliefs to what 
> type of health insurance it provides.Moreover, it would also be an 
> “administrative” or “secular” expense (as opposed to inherently religious) 
> for Notre Dame to pay for the salary of someone running one of its government 
> grant programs, but that doesn’t mean Notre Dame can’t apply its religious 
> beliefs and criteria to selecting those that it hires.So I think it is 
> fair to say that there can be secular expenses (as opposed to inherently 
> religious) under Establishment Clause jurisprudence that still involve the 
> exercise of religious beliefs by a religious entity.  
>  
>  
> From: religionlaw-boun...@lists.ucla.edu 
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
> 
>  
> This reminds me of the religious organizations
> who tell their employees in writing that they do not discriminate but when 
> they get sued for discrimination
> argue the ministerial exception. 
>  
>Religious employers appear to be no different from any other in seeking 
> the most beneficial position at the
> expense of employees or others.   The question
> is whether courts will hold them to their
> previous statements and positions.
> 
> Marci A. Hamilton
> 
> On Jan 6, 2014, at 4:21 PM, Greg Lipper  wrote:
> 
> One further note, related to Marci’s question, and detailed in our 
> intervention papers: Notre Dame has emphasized the secular nature of its 
> benefits when in its legal interests to do so. 
>  
> In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
> Clause challenge to public funding of a teacher-training program at Notre 
> Dame, the university argued that the benefits that it provides, including 
> health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee 
> at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. 
>  
> And in American Jewish Congress v. Corporation for National & Community 
> Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
> Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
> Establishment Clause challenge to Notre Dame’s receipt of public funds, the 
> University argued that purchasing health insurance is “administrative” in 
> nature and does not constitute “religious instruction or activity.” Mem. of 
> Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at 
> Part A, § 3, para 10.
>  
> So whatever else Notre Dame may or may not do to create a religious 
> educational environment, presumably it can’t have it both ways – health 
> insurance is either a secular expense or involves religious exercise, but it 
> can’t be both at the same time.
>  
>  
> On Jan 6, 2014, at 3:44 PM, Marci Hamilton  wrote:
>  
> 
> Doesn't it depend in some way on how much 
> federal money it receives?   Again, I am
> simply asking.
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
>  
> 
> On Jan 6, 2014, at 3:15 PM, Rick Garnett  wrote:
> 
> Notre Dame is allowed (I assume – again, I am just an employee and am not 
> involved in admissions or with the University Counsel’s work) to take 
> religion, and many other factors, into account when building its classes, 
> sure.  Does anyone believe that Notre Dame should *not* be able to conduct 
> admissions so as to, for example, admit classes that are predominantly 
> Catholic?
>  
> Best,
>  
> Rick
>  
> Richard W. Garnett
> Professor of Law and Concurrent Professor of Political Science
> Director, Program on Church, State & Society
> Notre Dame Law School
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as 
> private.  Anyone can subscribe to the list and read messages that are posted; 
> people can read the Web

RE: The nonprofit contraception services cases

[Stuart Buck]

Given the World Health Organization's classification of oral contraception as a 
Class I carcinogen (along with asbestos, arsenic, and the like), and given the 
fact that contraception also raises the risk of heart attack and stroke, it's 
not quite clear who is opposed to "health" here. 
 See http://monographs.iarc.fr/ENG/Monographs/vol91/index.php and 
http://abcnews.go.com/Health/birth-control-linked-heart-attack-stroke/story?id=16559498,
 for example. 

> CC: religionlaw@lists.ucla.edu
> From: hamilto...@aol.com
> Subject: Re: The nonprofit contraception services cases
> Date: Tue, 7 Jan 2014 13:06:25 -0500
> To: religionlaw@lists.ucla.edu
> 
> Because medical treatment and health coverage for it is determined by neutral 
> criteria like science and economics.  Religion is not on the same footing-- 
> indeed, for a number of faiths, religion is actually in opposition to health. 
>   
> 
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton 
> 
> 
> 
> > On Jan 7, 2014, at 12:51 PM, "Gaubatz, Derek"  wrote:
> > 
> > I'm not sure I see a limiting principle for your statement that "a doctrine 
> > that allows a person or institution to govern my health care goes too far." 
> >   Don't most employer sponsored plans "govern" another's health care by 
> > specifying what procedures will be covered and what portion will be paid?   
> > Such decisions about what procedures to cover and at what rate of 
> > reimbursement may be based on a variety of factors--economic, medical, 
> > employee morale, competition in the market, etc.   If an employer can 
> > legitimately apply such economic considerations to govern the health care 
> > plan that it chooses to provide for its employees, why shouldn't it also be 
> > allowed to apply moral or religious criteria.   In fact, saying it can't 
> > apply religious criteria would single out such criteria out for unique 
> > disfavor which would itself raise First Amendment and RFRA claims.
> > 
> > Derek L. Gaubatz
> > IMB General Counsel
> > 
> > Our vision is a multitude from every language, people, tribe and nation 
> > knowing and worshipping our Lord Jesus Christ.
> > 
> > -Original Message-
> > From: religionlaw-boun...@lists.ucla.edu 
> > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud
> > 
> > 1.  I have a problem over Notre Dame applying its religious beliefs to the 
> > provision of health services to others.  In drawing lines about religious 
> > freedom in a free society, I would say that, while in appropriate cases the 
> > state can protect one's religious freedom in one's own health care or own 
> > conduct,  a doctrine that allows a person or institution to govern my 
> > health care goes too far.  I realize that prevailing doctrine may have 
> > passed me by, but I have to wonder how serious the interference with 
> > religion is when the law requires a University to provide its employees 
> > with the ability to choose to have procedures that offend the person's or 
> > institution's religious principles.  I realize this may be repetitious, but 
> > Derek's comment provoked me.
> > 
> > 2.  I do think that if a court is not permitted to determine the sincerity 
> > of beliefs or substantiality of the alleged interference, there is a 
> > serious problem. Those of you who thought a religion based on our creator's 
> > endowment of us with certain inalienable rights was ludicrous should see 
> > this article:
> > 
> > Group wants Satan monument placed where one of the Ten Commandments stood
> > 
> > By Sean Murphy, Associated Press
> > Posted:   01/06/2014 09:21:44 PM PST
> > Updated:   01/06/2014 09:21:46 PM PS
> > 
> > http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews
> > 
> > "It sounds like the beginning of a joke: A Hindu leader, the satirical 
> > Church of the Flying Spaghetti Monster and a satanic group all applied for 
> > a monument...
> > The satanic group wants a statue of Satan placed at the Oklahoma state 
> > Capitol where a Ten Commandments monument was placed in 2012. Similar 
> > requests have been made by a Hindu leader in Nevada, an animal rights group 
> > and the satirical Church of the Flying Spaghetti Monster.
> > The New York-based Satanic Temple formally submitted its application to a 
> > panel that oversees the Capitol grounds, including an a

Re: The nonprofit contraception services cases

[Greg Lipper]

Stuart, is your position that all women should stop using oral contraception, 
and/or (2) employers are better equipped to weigh the benefits/risks of 
contraception than women and their physicians?


On Jan 7, 2014, at 2:05 PM, Stuart Buck 
mailto:stuartb...@msn.com>> wrote:

Given the World Health Organization's classification of oral contraception as a 
Class I carcinogen (along with asbestos, arsenic, and the like), and given the 
fact that contraception also raises the risk of heart attack and stroke, it's 
not quite clear who is opposed to "health" here.

 See http://monographs.iarc.fr/ENG/Monographs/vol91/index.php and 
http://abcnews.go.com/Health/birth-control-linked-heart-attack-stroke/story?id=16559498,
 for example.

> CC: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
> From: hamilto...@aol.com<mailto:hamilto...@aol.com>
> Subject: Re: The nonprofit contraception services cases
> Date: Tue, 7 Jan 2014 13:06:25 -0500
> To: religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>
>
> Because medical treatment and health coverage for it is determined by neutral 
> criteria like science and economics. Religion is not on the same footing-- 
> indeed, for a number of faiths, religion is actually in opposition to health.
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> > On Jan 7, 2014, at 12:51 PM, "Gaubatz, Derek" 
> > mailto:dgaub...@imb.org>> wrote:
> >
> > I'm not sure I see a limiting principle for your statement that "a doctrine 
> > that allows a person or institution to govern my health care goes too far." 
> > Don't most employer sponsored plans "govern" another's health care by 
> > specifying what procedures will be covered and what portion will be paid? 
> > Such decisions about what procedures to cover and at what rate of 
> > reimbursement may be based on a variety of factors--economic, medical, 
> > employee morale, competition in the market, etc. If an employer can 
> > legitimately apply such economic considerations to govern the health care 
> > plan that it chooses to provide for its employees, why shouldn't it also be 
> > allowed to apply moral or religious criteria. In fact, saying it can't 
> > apply religious criteria would single out such criteria out for unique 
> > disfavor which would itself raise First Amendment and RFRA claims.
> >
> > Derek L. Gaubatz
> > IMB General Counsel
> >
> > Our vision is a multitude from every language, people, tribe and nation 
> > knowing and worshipping our Lord Jesus Christ.
> >
> > -Original Message-
> > From: 
> > religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
> >  [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of mallamud
> >
> > 1. I have a problem over Notre Dame applying its religious beliefs to the 
> > provision of health services to others. In drawing lines about religious 
> > freedom in a free society, I would say that, while in appropriate cases the 
> > state can protect one's religious freedom in one's own health care or own 
> > conduct, a doctrine that allows a person or institution to govern my health 
> > care goes too far. I realize that prevailing doctrine may have passed me 
> > by, but I have to wonder how serious the interference with religion is when 
> > the law requires a University to provide its employees with the ability to 
> > choose to have procedures that offend the person's or institution's 
> > religious principles. I realize this may be repetitious, but Derek's 
> > comment provoked me.
> >
> > 2. I do think that if a court is not permitted to determine the sincerity 
> > of beliefs or substantiality of the alleged interference, there is a 
> > serious problem. Those of you who thought a religion based on our creator's 
> > endowment of us with certain inalienable rights was ludicrous should see 
> > this article:
> >
> > Group wants Satan monument placed where one of the Ten Commandments stood
> >
> > By Sean Murphy, Associated Press
> > Posted: 01/06/2014 09:21:44 PM PST
> > Updated: 01/06/2014 09:21:46 PM PS
> >
> > http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews
> >
> > "It sounds like the beginning of a joke: A Hindu leader, the satirical 
> > Church of the Flying Spaghetti Monster and a satanic group all applied for 
> > a monument...
> > Th

RE: The nonprofit contraception services cases

[Berg, Thomas C.]

If I understand the argument below made by Americans United, it seems to me a 
non sequitur.  Why can't it be that an activity (such as providing health 
benefits) is "secular" and yet the persons or organizations engaged in it have 
a religious-freedom interest in being able to pursue it in ways that do not 
violate their religious tenets?  Would Americans United argue that Adele 
Sherbert's work (in Sherbert v. Verner) was "religious activity" because she 
wanted to pursue it in a way that did not violate her beliefs about the Sabbath?

-
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN   55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
SSRN: http://ssrn.com/author='261564
Weblog: 
http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice>


From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Greg Lipper
Sent: Monday, January 06, 2014 3:21 PM
To: Law & Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

One further note, related to Marci's question, and detailed in our intervention 
papers: Notre Dame has emphasized the secular nature of its benefits when in 
its legal interests to do so.

In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment 
Clause challenge to public funding of a teacher-training program at Notre Dame, 
the university argued that the benefits that it provides, including health 
insurance, are "secular expenses." See Br. of Def.-Intervenor-Appellee at 7-8, 
Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8.

And in American Jewish Congress v. Corporation for National & Community 
Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. 
Corp. for Nat'l. & Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another 
Establishment Clause challenge to Notre Dame's receipt of public funds, the 
University argued that purchasing health insurance is "administrative" in 
nature and does not constitute "religious instruction or activity." Mem. of 
Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part 
A, § 3, para 10.

So whatever else Notre Dame may or may not do to create a religious educational 
environment, presumably it can't have it both ways - health insurance is either 
a secular expense or involves religious exercise, but it can't be both at the 
same time.





On Jan 6, 2014, at 3:44 PM, Marci Hamilton 
mailto:hamilto...@aol.com>> wrote:


Doesn't it depend in some way on how much
federal money it receives?   Again, I am
simply asking.

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



On Jan 6, 2014, at 3:15 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Notre Dame is allowed (I assume - again, I am just an employee and am not 
involved in admissions or with the University Counsel's work) to take religion, 
and many other factors, into account when building its classes, sure.  Does 
anyone believe that Notre Dame should *not* be able to conduct admissions so as 
to, for example, admit classes that are predominantly Catholic?

Best,

Rick

Richard W. Garnett
Professor of Law and Concurrent Professor of Political Science
Director, Program on Church, State & Society
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
rgarn...@nd.edu<mailto:rgarn...@nd.edu>

To download my scholarly papers, please visit my SSRN 
page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>

Blogs:

Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://mirrorofjustice.blogs.com/>

Twitter:  @RickGarnett<https://twitter.com/RickGarnett>

From: 
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Monday, January 06, 2014 3:08 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: The nonprofit contraception services cases

This is strictly an informational question-- is Notre Dame allowed to 
discriminate on the basis of religion in undergraduate admission?



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



On Jan 6, 2014, at 2:46 PM, Rick Garnett 
mailto:rgarn...@nd.edu>> wrote:
Dear colleagues,

I would recommend Prof. Kevin Walsh's post (here: 

RE: The nonprofit contraception services cases

[Stuart Buck]

Women can and should decide whatever they want, hopefully taking into account 
all of the risks and tradeoffs that are currently obscured by claims regarding 
a conflict between religion and "health." Now, in the vast majority of cases, 
contraception is covered by health insurance. In the rare event that an 
employer objects, well, contraception is available for $9 a month at Walmart, 
Target, and more (see 
http://www.reproductiveaccess.org/contraception/lowcost_pills.htm), which, by 
the way, is less than the co-pay for the vast majority of drugs that are 
covered by insurance. If even $9 a month is still too much for someone's 
budget, there are 4,400 Title X clinics in the U.S. In light of these facts, 
it's hard to see why it's so important to strong-arm a few nuns, monks, even 
Hobby Lobby, no matter how silly and misguided one might think them.

From: lip...@au.org
To: religionlaw@lists.ucla.edu
Subject: Re: The nonprofit contraception services cases
Date: Tue, 7 Jan 2014 19:30:40 +






Stuart, is your position that all women should stop using oral contraception, 
and/or (2) employers are better equipped to weigh the benefits/risks of 
contraception than women and their physicians? 






On Jan 7, 2014, at 2:05 PM, Stuart Buck  wrote:



Given the World Health Organization's classification of oral contraception as a 
Class I carcinogen (along with asbestos, arsenic, and the like), and given the 
fact that contraception also raises the risk of heart attack and stroke, it's 
not quite
 clear who is opposed to "health" here. 



 See http://monographs.iarc.fr/ENG/Monographs/vol91/index.php and 
http://abcnews.go.com/Health/birth-control-linked-heart-attack-stroke/story?id=16559498,
 for example. 



> CC: religionlaw@lists.ucla.edu

> From: hamilto...@aol.com

> Subject: Re: The nonprofit contraception services cases

> Date: Tue, 7 Jan 2014 13:06:25 -0500

> To: religionlaw@lists.ucla.edu

> 

> Because medical treatment and health coverage for it is determined by neutral 
> criteria like science and economics. Religion is not on the same footing-- 
> indeed, for a number of faiths, religion is actually in opposition to health. 

> 

> Marci A. Hamilton

> Verkuil Chair in Public Law

> Benjamin N. Cardozo Law School

> Yeshiva University

> @Marci_Hamilton 

> 

> 

> 

> > On Jan 7, 2014, at 12:51 PM, "Gaubatz, Derek"  wrote:

> > 

> > I'm not sure I see a limiting principle for your statement that "a doctrine 
> > that allows a person or institution to govern my health care goes too far." 
> > Don't most employer sponsored plans "govern" another's health care by 
> > specifying what procedures will
 be covered and what portion will be paid? Such decisions about what procedures 
to cover and at what rate of reimbursement may be based on a variety of 
factors--economic, medical, employee morale, competition in the market, etc. If 
an employer can legitimately
 apply such economic considerations to govern the health care plan that it 
chooses to provide for its employees, why shouldn't it also be allowed to apply 
moral or religious criteria. In fact, saying it can't apply religious criteria 
would single out such criteria
 out for unique disfavor which would itself raise First Amendment and RFRA 
claims.

> > 

> > Derek L. Gaubatz

> > IMB General Counsel

> > 

> > Our vision is a multitude from every language, people, tribe and nation 
> > knowing and worshipping our Lord Jesus Christ.

> > 

> > -Original Message-

> > From: religionlaw-boun...@lists.ucla.edu 
> > [mailto:religionlaw-boun...@lists.ucla.edu]
 On Behalf Of mallamud

> > 

> > 1. I have a problem over Notre Dame applying its religious beliefs to the 
> > provision of health services to others. In drawing lines about religious 
> > freedom in a free society, I would say that, while in appropriate cases the 
> > state can protect one's religious
 freedom in one's own health care or own conduct, a doctrine that allows a 
person or institution to govern my health care goes too far. I realize that 
prevailing doctrine may have passed me by, but I have to wonder how serious the 
interference with religion
 is when the law requires a University to provide its employees with the 
ability to choose to have procedures that offend the person's or institution's 
religious principles. I realize this may be repetitious, but Derek's comment 
provoked me.

> > 

> > 2. I do think that if a court is not permitted to determine the sincerity 
> > of beliefs or substantiality of the alleged interference, there is a 
> > serious problem. Those of you who thought a religion based on our creator's 
>

Re: The nonprofit contraception services cases

[Will Esser]

Marci,
 
Could you provide a bit more context on your statement below:
 
"What strikes me as odd is that a university would welcome nonbelievers as ND 
does and publicly support the free exercise of religion, but then tell its 
nonbelieving female students that they must follow the school's beliefs on 
reproductive health and not their own."  

What exactly strikes you as odd?  Are you implying that the the nonbeliving 
female students beliefs about reproductive health constitute "the free exercise 
of religion"?  As I understand it, ND policy states two things:
 
(a) All students attending ND are expected to adhere to the ND conduct code, 
which includes no sexual relations between unmarried individuals, regardless of 
gender; and 
 
(b) ND is religiously opposed to paying for contraception for students or 
employees and therefore wants such coverage excluded from the health insurance 
it provides. 
 
I would appreciate it if you would provide some further clarity on your 
statement.  Thanks.
 
Will Esser 
Charlotte, North Carolina




From: Marci Hamilton 
To: Law & Religion issues for Law Academics  
Cc: ""  
Sent: Tuesday, January 7, 2014 1:01 PM
Subject: Re: The nonprofit contraception services cases


Courts can always test sincerity and the substantiality of the burden though in 
these cases, several courts have treated "substantial" as functionally 
irrelevant.  

What strikes me as odd is that a university would welcome nonbelievers as ND 
does and publicly support the free exercise of religion, but then tell its 
nonbelieving female students that they must follow the school's beliefs on 
reproductive health and not their own.  

The element in all of these cases that is most troubling in my view is the 
intent by the entity in power -- school or employer -- to impose its faith on 
nonbelievers it brings in itself.  

  It is most troubling for the for-profit employer like Hobby Libby though, 
because the employer may not discriminate in hiring based on religion.  So 
there is a legally created arrangement that employees should be able to presume 
their livelihood is not related to their faith but rather their contributions 
to the marketplace as employees.  Why HL would then think it can or should 
tailor compensation benefit packages by faith is troubling.  And new given it 
did not do so before the ACA, at least according to press accounts.

Marci

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



> On Jan 7, 2014, at 12:23 PM, mallamud  wrote:
> 
> 1.  I have a problem over Notre Dame applying its religious beliefs to the 
> provision of health services to others.  In drawing lines about religious 
> freedom in a free society, I would say that, while in appropriate cases the 
> state can protect one's religious freedom in one's own health care or own 
> conduct,  a doctrine that allows a person or institution to govern my health 
> care goes too far.  I realize that prevailing doctrine may have passed me by, 
> but I have to wonder how serious the interference with religion is when the 
> law requires a University to provide its employees with the ability to choose 
> to have procedures that offend the person's or institution's religious 
> principles.  I realize this may be repetitious, but Derek's comment provoked 
> me.
> 
> 2.  I do think that if a court is not permitted to determine the sincerity of 
> beliefs or substantiality of the alleged interference, there is a serious 
> problem. Those of you who thought a religion based on our creator's endowment 
> of us with certain inalienable rights was ludicrous should see this article:
> 
> Group wants Satan monument placed where one of the Ten Commandments stood
> 
> By Sean Murphy, Associated Press
> Posted:  01/06/2014 09:21:44 PM PST
> Updated:  01/06/2014 09:21:46 PM PS
> 
> http://www.mercurynews.com/digital-first-media/ci_24858709/group-wants-satan-monument-placed-where-one-ten?source=inthenews
> 
> "It sounds like the beginning of a joke: A Hindu leader, the satirical Church 
> of the Flying Spaghetti Monster and a satanic group all applied for a 
> monument...
> The satanic group wants a statue of Satan placed at the Oklahoma state 
> Capitol where a Ten Commandments monument was placed in 2012. Similar 
> requests have been made by a Hindu leader in Nevada, an animal rights group 
> and the satirical Church of the Flying Spaghetti Monster.
> The New York-based Satanic Temple formally submitted its application to a 
> panel that oversees the Capitol grounds, including an artist's rendering that 
> depicts 7-foot-tall Satan as Baphomet, a goat-headed figure with horns, wings 
> and a long beard that's often used as a symbo