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 government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations.
On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock <dlayc...@virginia.edu>wrote: > 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. 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 *b...@jmcenter.org > *Sent:* Tuesday, October 02, 2012 11:36 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > Doug, **** > > **** > > Would your view -- expressed in the third paragraph of your post -- be > different if the HHS mandated contraceptive coverage, preventive care, etc. > actually saved the employer money rather than cost the employer money? > Would saving money (i.e., reduced insurance premium) be a substantial > burden even if the saving resulted a government mandate to provide health > care that the employer found religiously objectionable? **** > > **** > > Bob Ritter **** > > **** > > Jefferson Madison Center for Religious Liberty **** > > A Project of the Law Office of Robert V. Ritter **** > > Falls Church, VA 22042 **** > > 703-533-0236 **** > > **** > > > On October 1, 2012 at 8:01 PM Douglas Laycock <dlayc...@virginia.edu> > wrote: > > My post on the analogy between exemption from military service and > exemption from abortion was addressed to Marci's claim that there should be > nothing special about objection to abortion. That is a much broader claim > than just the ACA issue. And there are people in the pro-choice movement > pushing against conscience protections for medical providers. > > > > As to ACA, I do not think there is a burden when an employer pays > salary, and the employee then uses the money for purposes the employer > considers immoral. The salary payments could have been used for anything. > > > > I think the burden on the taxpayer who pays taxes, knowing that the > government will use the money for purposes the taxpayer considers immoral, > is highly attenuated, and uniformly outweighed by the government's > compelling interest in paying taxes. > > > > The ACA looks different to those objecting, and plausibly so, because > the money is not paid to the employees or to the government. The employer > buys a package of services that includes the services the employer believes > to be immoral, including the morning-after and week-after pills that the > employer believes sometimes kill human beings. The employer contracts for > those services and pays for those services, and these employers say they > cannot in conscience do those things. > > > > On Mon, 1 Oct 2012 19:46:50 -0400 > > Marty Lederman <lederman.ma...@gmail.com> wrote: > > >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. > > >> > > >> 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: > > >> > > > >> > > > >> >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. > > >> > > > >> > > > >> >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. >
_______________________________________________ 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.
