The burden on religion in these cases is not the amount of money. It is
arranging for, contracting for, and paying for services the employer believes
to be deeply immoral. From the believer’s perspective, it doesn’t matter
whether it costs money or saves money.
Douglas Laycock
Robert E.
Well, if the claim of a religious burden is -- as the plaintiffs in
virtually all of these cases has alleged -- based upon the notion that the
employer is prohibited from permitting its money to be used for
contraception, even as mediated by independent decisions of others; and if,
as the
The videos of our conference are now posted, on a site where we have also
posted many of the most important resources (opinions, briefs, the Rule,
articles, blogposts, etc.) related to the debate. Hope you find it
useful. Please let me know if you have any reactions or suggestions of
sources to
The burden in these cases is a newly configured theory of burden, wherein the
believer is attempting to alter a neutral, generally applicable system
so that nonbelievers will be deterred from engaging in practices the believer
disapproves of. It is no longer about the believer him or herself,
Can I ask a quick question for people like Marci, Marty, and others who
doubt the existence of a “substantial burden”?
What about United States v. Lee? The Amish object to paying Social Security
taxes. The government makes them. The decision to use the taxes for Social
Security is the
But it simply is not the case that the alleged burden is use of the employer's
money mediated by independent decisions of others. It's the requirement that
the employer enter into a contract that subsidizes actions that the employer
believes to be immoral. No one, as far as I know, has claimed
Re: Chris Lund's question about Lee -- The Amish take care of their own who
are disabled or no longer able to work. They didn't want to pay twice --
once for FICA contributions, and again in their own community. And the
FICA contributions were earmarked for just that use.
Employers objecting to
Isn't that like saying, if it's OK for you to 'produc[e] the
raw product necessary for the production of any kind of tank,' why is working
on tank turrets any different?? Why isn't the answer much like that given in
Thomas: But Thomas' statements reveal no more than that he
I think Doug is right that it doesn't matter whether it costs money or
saves money. The objection is any money going to the religiously
prohibited use.
You see this kind of argument in Establishment Clause cases. The
government says to a taxpayer, You need to pay money to fund a religious
And the point then, Marty, is that for centuries there has been a respectable
mode of moral analysis in which the directness of involvement in an action is
related to moral complicity. Buying an insurance policy that constitutes an
agreement by the employer to subsidize a specific activity is a
Mark: My point is that, as far as I know, for centuries *neither *case
has been considered impermissible cooperation with evil under the mode of
moral analysis you invoke (which I agree is respectable, indeed). Of
course if the employer affirmatively *chose* to cover contraception, or had
a
Eugene has it exactly right.
On a related note, if, as some people have claimed, insurance premiums would be
higher if contraceptive, sterilization etc. services were not covered (due to
additional pregnancies), then it becomes perfectly obvious that the objection
is not a disguised attempt to
Thanks, Chip. A couple responses.
The way I read Lee, the burden was not that the Amish had to pay twice.
The burden was that they had to pay the government at all. See, e.g.,
Lee, 455 U.S. at 257 (We therefore accept appellee's contention that both
payment and receipt of social security
Chris, I respectfully disagree with the ipso facto view that a plaintiff is
substantially burdened when ever compelled to do something their religion
forbids. Burdened yes, substantially burdened maybe. This may sound cold, but
it's business. I would suggest to people who oppose the mandate to
Marty, obviously worthy questions. No answers, just some thoughts.
1. I think I feel the same way you do. Burden, sincerity, and
centrality all were used to restrict the scope of the compelling-interest
test. The Court has junked centrality, and has limited inquiries on
sincerity.
Dear Marci,
The substantial burden theory here is not new, it’s merely another factual
iteration of what the Supreme Court has previously recognized in cases like
Yoder to be a substantial burden: levying a financial penalty against an
individual who refuses to violate his sincere religious
Dear Marci,
The substantial burden theory here is not new, it’s merely another factual
iteration of what the Supreme Court has previously recognized in cases like
Yoder to be a substantial burden: levying a financial penalty against an
individual who refuses to violate his sincere religious
Thanks, Chris. As to your discussion regarding what might be truly
bothering at least some critics of the HHS within the Church, over at
Mirror of Justice Rick G. links to this new post by one of our esteemed
Conference participants, Patrick Deenen, whose views on this certainly
differ
Dear Marci,
The substantial burden theory here is not new, it’s merely another factual
iteration of what the Supreme Court has previously recognized in cases like
Yoder to be a substantial burden: levying a financial penalty against an
individual who refuses to violate his sincere religious
Dear Marci,
The substantial burden theory here is not new, it’s merely another factual
iteration of what the Supreme Court has previously recognized in cases like
Yoder to be a substantial burden: levying a financial penalty against an
individual who refuses to violate his sincere religious
Dear Marci,
The substantial burden theory here is not new, it's merely another factual
iteration of what the Supreme Court has previously recognized in cases like
Yoder to be a substantial burden: levying a financial penalty against an
individual who refuses to violate his sincere religious
It cannot be the answer that the coverage is mandated. Whether the coverage can
be mandated is the question. The employer signs a contract, and pays for a
contract, that covers these services. But for the regulation, he could sign and
pay for a very similar contract that does not cover these
Marty,
If the Catholic Church's view is really the same as Patrick Deenen's-if
the Catholic Church's real objection is that HHS moves us to a
Leviathan-like state and they have religious objections to that-then I
agree its First Amendment claim fails. Then this really does become a
case like
If I understand the Catholic doctrine, Doug, in your hypothetical the
church will have *chosen* to save the $200,000 by having the kids dumped.
That would be a form of (presumptively prohibited) formal cooperation with
evil.
But here, the state has eliminated the choice. (Well, not quite --
A couple of quick thoughts regarding your points, Chris.
1. If we are talking about existing laws such as RFRA or other laws that
require strict scrutiny review, there may be a dilution problem (although like
you I have seen strict scrutiny diluted in state RFRA cases and in RLUIPA cases
Sorry if I was unclear, Chris. I agree wholeheartedly that organizations
that that don’t hire exclusively in the faith can have an important
religious mission. And that mission might even include asking its
employees -- of all faiths and no faith -- to act in certain ways while
performing their
Well, Marty's response at least seems to agree that saving money doesn't
take away the claim.
Does following government orders take away the claim? If it did, as Marty
notes, there could never be a RFRA claim. If the government funded the
orphanage, and ordered the church to take the cheaper
Doug: Is it actually the case that the bishops say these rules are too
important to them for a following orders defense to provide moral
justification? That is to say, have the bishops, or any other Catholic
authority, actually articulated the view that a Catholic employer will
engage in
I did not mean to say that the bishops are saying that no Catholic employer
can comply. I don't know what they are saying about that. Quite possibly
nothing. But they are saying loud and clear that the Catholic institutions
for which they are responsible cannot comply, and they are saying that in
Loud -- I agree. Clear? Not so much. Have they said that such
institutions cannot comply? Indeed, I'm not even sure they've instructed
such institutions that they must make the alternative payment to the
government if they are not exempted. Again, I genuinely don't know --
perhaps the Bishops
To follow up on Doug's point, in some cases whether a religious person is
relieved of an obligation because of duress might depend on the kind and
magnitude of the duress. Obligations may be excused if compliance places the
individual's life at risk, for example. Under Marty's analysis, would
I really don't understand Mark's argument here: If one accepts a (strong
version of) Romans 13:1 re the legitimacy of magistrates and therefore feels
impelled to obey them (as Scalia has suggested he does), then why is it a
burden at all, since by definition what the magistrate (appointed by
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