Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.)
Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic theologian, who takes the view that the payment of taxes or salaries is wrongful just because the employer knows that they will be put to use for contraception and (in the case of salaries) abortions . . . and many other things, besides, that are wrongful in the eyes of the employer. Thus the question here is whether the state ought to take at face value the assertions of some employers that the moral obligation changes dramatically when the money is used for partial subsidization of an insurance plan, rather than for taxes or salaries. I actually think this is a complex question, as to which I deeply appreciate the many thoughtful views others have contributed to this thread. But whatever the merits of that distinction, the case is a far cry from compelling the employer "to kill another human being." On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > We have a long political tradition of treating objections to killing as a > special claim, deserving special protection. We have exempted conscientious > objectors in all our wars, even when national existence was on the line, > and notwithstanding powerful incentives to dubious conversions or false > claims. > > This protection has not been as broad as objectors would like; it is not > immune to limitation when government chooses to assert its compelling > interests. But it received very strong protection that grew stronger over > time. > > In the war case, we all agree that draftees may be asked to kill other > human beings, but the majority says these are lawful killings, and the > minority says they are killings prohibited by God. > > In the abortion case, the majority believes it is not a killing of a human > being; the conscientious objector believes it is. The disagreement over the > nature of the killing comes at a slightly different point; I do not claim > that the cases are identical. > > I do believe that there are sound reasons, reflected in our legal and > political tradition, to give special deference to what the conscientious > objector believes is a refusal to kill another human being. > > The cases also differ in the weight of the government's interest; it is > almost never essential that an abortion be performed or assisted by a > particular medical provider. > > On Mon, 1 Oct 2012 17:16:55 -0400 (EDT) > hamilto...@aol.com wrote: > >In response to Rick, the answer to the question from my perspective is > that a religiously affiliated organization (not a church) could be required > to provide > >insurance that includes all possible medically feasible and advisable > treatments. That is a classic, neutral, generally applicable law. > > > > > >Obviously, abortion is at times a medically feasible and medically > advisable treatment. The employer buys an ombnibus insurance plan, and > employers, consistent with medical advice and their own religious and > personal views, choose what treatments they obtain. That seems to me > constitutional. This is not distinguishable > >from the objections raised by Quakers having to pay taxes that support > war or the Amish having to pay into social security that supports a set of > relationships > >they believe are religiously wrong. > > > > > >I'm glad you asked this question, because it seems to indicate that the > argument against the ACA at base appears to be that the belief against > abortion is somehow more important than other beliefs. I don't see how the > Establishment Clause permits that kind of religious belief prioritizing, or > any of the free exercise cases either. > > > > > >No employer should be able to exclude blood transfusions, which are > abhorrent to Jehovahs Witnesses, from medical coverage. I haven't heard > anyone > >get behind such an exemption. But those opposing the ACA's > reproductive health care provisions seem to be suggesting that somehow > abortion opposition is a superior belief that deserves extra constitutional > protection. > > > > > > > >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: Marty Lederman <lederman.ma...@gmail.com> > >To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > >Sent: Mon, Oct 1, 2012 1:49 pm > >Subject: Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden" > > > > > >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 emplo > yees 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 > > > >Blogs: > > > >Prawfsblawg > >Mirror of Justice > > > > > > > >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] 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. > > > > > > Douglas Laycock > Robert E. Scott Distinguished Professor of Law > University of Virginia Law School > 580 Massie Road > Charlottesville, VA 22903 > 434-243-8546 > _______________________________________________ > 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.
