Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward.
One caveat on the "equivalence" point raised by Rob and Rick: To the extent the court is rejecting a "proximate cooperation with evil" theory of substantial burden here, then yes, that same theory would presumably be subject to the same objections if the case involved a diocese and elective abortion coverage. But the diocese would have a much stronger substantial burden argument on a different theory -- one of the "institutional autonomy" theories that Rick referred to earlier. In particular, assuming the diocese exercises its title VII exemption, and prefers coreligionists in employment, then I'd assume one of its principal functions -- unlike that of the ceramics-processing O'Brien Industrial Company -- is to create and nurture a particular kind of religious community, one in which its employees are expected to advance its Catholic mission, and to adhere to Catholic tenets in their own conduct. The HHS rule would arguably have a significant impact on the ability of the diocese to so shape its community and to ensure that its employees act in accordance with Catholic precepts. In that respect, the diocese is very differently situated for RFRA purposes from the O'Brien Industrial Company, which hires many non-Catholics and that does not endeavor to require its employees to conform their conduct to Catholic precepts. On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett <rgarn...@nd.edu> wrote: > Dear colleagues,**** > > ** ** > > Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well > the decision’s many flaws -- to the decision we’re discussing, at the > “Mirror of Justice” blog: > http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html > **** > > ** ** > > As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial > burden” -- would apply to a RFRA challenge brought by a Catholic diocese to > an exemption-less requirement that the diocese provide insurance coverage > for elective abortions. Do those who have been welcoming this decision > agree that RFRA would not / should not protect the diocese in such a case? > **** > > ** ** > > Best, R**** > > ** ** > > Richard W. Garnett**** > > Professor of Law and Associate Dean**** > > Notre Dame Law School**** > > P.O. Box 780**** > > Notre Dame, Indiana 46556-0780**** > > ** ** > > 574-631-6981 (w)**** > > 574-276-2252 (cell)**** > > ** ** > > SSRN page <http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> > **** > > ** ** > > Blogs:**** > > ** ** > > Prawfsblawg <http://prawfsblawg.blogs.com/>**** > > Mirror of Justice <http://www.mirrorofjustice.blogs.com/> **** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock > > *Sent:* Monday, October 01, 2012 10:55 AM > *To:* 'Law & Religion issues for Law Academics' > *Subject:* FW: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > Lyng and Bowen involved no regulation of religious behavior. Lee expressly > found a burden on free exercise (455 U.S. at 257); the case was decided on > compelling interest grounds. None of these cases have any relevance to the > burden issue in the ACA cases.**** > > ** ** > > And by the way, I think that all three were rightly decided.**** > > ** ** > > Douglas Laycock**** > > Robert E. Scott Distinguished Professor of Law**** > > University of Virginia Law School**** > > 580 Massie Road**** > > Charlottesville, VA 22903**** > > 434-243-8546**** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu>] > *On Behalf Of *hamilto...@aol.com > *Sent:* Monday, October 01, 2012 8:34 AM > *To:* religionlaw@lists.ucla.edu > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > Religious groups and their supporters have been trying to water down > "substantial" **** > > for years. The Alabama rfra doesn't include "substantial" and neither > did the failed North Dakota or Colorado**** > > initiatives. One of the reasons the latter failed is overreaching, though > it is also attributable to the fact**** > > that the Rutherford Institute and others lobbying for rfras have met their > match in a number of opposing groups.**** > > ** ** > > The court in the ACA case did little more than apply existing law on the > interpretation of "substantial." Those arguing**** > > the case was wrongly decided on this issue are arguing for a new standard. > That is contrary to RFRA's (and RLUIPA's) legislative history, which > indicate**** > > "substantial burden" was to be interpreted according to existing > precedents (as of 1993 and 2000)..... In other words, Lyng, Bowen, and Lee > are the**** > > governing interpretations for RFRA. Subjective views of burden are not > part of the doctrine. It would take the Supreme Court to overturn these** > ** > > decisions to grant a win to the religiously affiliated institutions.**** > > ** ** > > 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**** > > ** ** > > _______________________________________________ > 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.
