Isn't there a difference here between (1) accepting specific
subsidies ("federal funds") that the government insists be used for behavior
that furthers specific government goals, and (2) "operat[ing] in the public
sphere by running hospitals and universities"? By way of analogy, consider the
Free Speech Clause. Rust v. Sullivan says that the government may insist that
certain funds be used to promote prenatal care and not abortion; and though the
holding is controversial as to that particular fact pattern, I assume it would
be uncontroversial as to most other funding programs. But it hardly follows, I
take it, that anyone running a hospital could be ordered not to speak out in
favor of abortion, or even some medical procedure that is not constitutionally
protected.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders
Sent: Monday, February 13, 2012 12:51 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Contraceptives and gender discrimination
What if a hospital is run by a religious group that believes doctrinally and
sincerely in not using advanced technology or extraordinary interventions to
prolong human life. In response, the government says, no, if you want to
receive federal funds, you'll employ conventional medical standards and
treatments. This burdens the institution's religious liberty by requiring it
to use resources in a way that violates its religious principles, doesn't it?
Yet in this case, it's highly doubtful that there would be any hew and cry
about the sect's religious liberty.
Obama's opponents and the Catholic hierarchy have done an effective job
painting this as an assult on religious liberty. But let's be honest, this is
really about controversial (i.e., those that remain part of the culture wars)
v. non-controversial government mandates. If a religious group chooses to
operate in the public sphere by running hospitals and universities, it gives up
some of its claim to be free of generally applicable government policies and
regulation. I had thought that principle was reasonably well settled. Some
might say, "well yes, if the religious group is running a McDonald's franchise,
that's different." But why should profit or tax status be the relevant
consideration?
Steve Sanders
________________________________
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Monday, February 13, 2012 10:27 AM
To: Law & Religion issues for Law Academics
Subject: RE: Contraceptives and gender discrimination
I have to admit that as long as we are talking about private resources, I have
a hard time understanding the argument that there is no burden on religious
institutions here. The private resources of religious institutions are
dedicated to conduct obligated by or at least consistent with religious beliefs
and doctrine. How can it not be a burden on the institution's religious liberty
for the state to require those resources to be used in a way that violates the
religious principles to which the institution is committed.
As for the analogy to taxes, I have always though there was a burden here
-although it is attenuated, difficult to mitigate, and probably overridden by
important state interests. But wouldn't a tax imposed on a class including
religious institutions that was earmarked for a specific purpose -such as
providing contraceptive services-raise a more difficult question?
Alan Brownstein
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu
Sent: Monday, February 13, 2012 5:50 AM
To: Marc DeGirolami
Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law & Religion issues for Law Academics;
Con Law Prof list
Subject: Re: Contraceptives and gender discrimination
On the burden question -- Religious entities may limit hiring to
co-religionists, and then make their best efforts to enforce religious norms
against employees. Doesn't that option make the burden of the HHS policy far
less substantial?
I think a common reaction to the religious liberty claim being advanced here is
its leveraging effect on employees who are not of the faith. So even if some
faiths have a religious mission to serve others, do they similarly have a
religious mission to employ others? Or is it their religious mission to impede
access to contraception by all, whether or not of the faith? If it's the
latter, I don't know why their position is any different from or stronger than
taxpayers who don't want to to support what they see as immoral activity by
their government.
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