Actually, Doug, you might want to reread Thomas. He worked in the roll foundry,
which closed.
So he then asked to work in any other department. All of those departments
involved parts for weapons. He could not do that he said,
But he said that he would have been willing to create materials that then later
were built into weapons.
In the opinion's words:
He testified that he could, in good conscience, engage indirectly in the
production of materials that might be used ultimately to fabricate arms -- for
example, as an employee of a raw material supplier or of a roll foundry.
So it is not nearly the complicity-with-evil case others have said it is.
Thomas was objecting to having to work directly on weapons parts, not doing
something that might ultimately produce something he disagrees with. I think
Thomas could have sent his money into a fungible stream... The HHS regs
situation is different. The employer has no belief against paying for health
care. What he objects to is sterilization and contraception. He says he can't
give money so that someone else might use it to do something he disagrees with.
Yet, any use of the fungible funds is made completely independently of the
employer -- under patient-doctor confidentiality and by a woman. On her side
is Griswold, Title VII on gender discrimination, and doctor-patient
confidentiality.
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
hamilto...@aol.com
-----Original Message-----
From: Douglas Laycock <dlayc...@virginia.edu>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>;
hamilton02 <hamilto...@aol.com>
Sent: Thu, Oct 4, 2012 12:09 pm
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Marci, you are arbitarily singling out different steps in a parallel sequence
of
events.
Thomas was asked to help assemble tank turrets. Others would put the turrets
into tanks. Still others, maybe, would use the tanks to kill people. Or maybe
not.
The bishops' view is that they are being asked to contract for and pay for
policies that cover contraception and very early abortifacients. That is what
they object to, whether or not anything happens thereafter. Other people will
use those policies to pay for medical care. Maybe some of them will pay for
contraception or emergency contraception. Or maybe not, although here the odds
seem higher than with the tanks. But it doesn't matter. The objection is to
contracting for and paying for the coverage.
On Thu, 4 Oct 2012 11:44:49 -0400 (EDT)
hamilto...@aol.com wrote:
>First, let me applaud Marty's memory. I am certain I could not tell you what
was discussed on this list in 1999! I'm not sure I was even reading it then.
>
>
>In any event, this is not the Thomas case. In Thomas, the objection was based
on the believer avoiding taking action that he would find in conflict with his
faith.
>He could not, consistent with his faith, participate in the manufacture of
materials used in arms. In this case, the alleged violation is in the
financial
support of a system
>in which others engage in acts that conflict with his religion. That is a
>step
farther. That is what makes me most uncomfortable about this (along with the
fact it singles out women's health).
>
>
>I understand that the argument is that the payment into the fund itself is a
burden, but that cannot be a winning argument after Lee, or after Zelman or the
4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses,
money is fungible, and the entity/person sending money into a stream no longer
has power/say/responsibility for how the money is used by independent actors
who
pluck it from that stream. So we are back to the question whether there is a
free exercise right for a for-profit company to deter employees from engaging
in
acts that conflict with the employer's religion.
>
>
>Marci
>
>
>
>Marci A. Hamilton
>Paul R. Verkuil Chair in Public Law
>Benjamin N. Cardozo School of Law
>Yeshiva University
>55 Fifth Avenue
>New York, NY 10003
>(212) 790-0215
>hamilto...@aol.com
>
>
>
>
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
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