Mark: My point is that, as far as I know, "for centuries" *neither *case has been considered impermissible cooperation with evil under the mode of moral analysis you invoke (which I agree is "respectable," indeed). Of course if the employer affirmatively *chose* to cover contraception, or had a legal choice whether to accept a plan with it or without it, and chose the former, that would be a form of *formal *cooperation with evil, which is proscribed (assuming, as I am here for sake of argument, that contraception is in fact "evil" from the employer's perspective). But absent such consent or choice, as here, the question is whether the "material" cooperation is sufficiently proximate -- and my understanding is that the proximity in these cases would be the same, and *not *sufficient to raise the prospect of impermissible cooperation.
FWIW, Cathy Kaveny (copied here) offered a really fantastic summary of the Catholic doctrine on this at the beginning of our second panel: http://www.youtube.com/watch?v=1J4rCsq732c On Wed, Oct 3, 2012 at 11:15 AM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > And the point then, Marty, is that for centuries there has been a > respectable mode of moral analysis in which the directness of involvement > in an action is related to moral complicity. Buying an insurance policy > that constitutes an agreement by the employer to subsidize a specific > activity is a much more direct involvement than just paying wages that an > employee may use in any way the employee chooses.**** > > ** ** > > Mark**** > > ** ** > > ** ** > > ** ** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, October 03, 2012 7:49 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > That's the point, Mark. The employer freely, and without objection, > enters into an employment contract with the employee to pay wages in > exchange for labor, knowing full well that some % of the wages will be used > for contraception, abortion, and probably a bunch of other things the > employer considers sinful. Now, the state requires that the contract be > changed slightly, so that in exchange for labor, the employee gets not only > wages (in effect diminished because of the cost of the health insurance), > but also access to a health insurance plan. What I think the judge was > getting at here was: If the first contract is morally unobjectionable, why > is the second any different?**** > > On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark < > mark.scarbe...@pepperdine.edu> wrote:**** > > But it simply is not the case that the alleged burden is use of the > employer’s money mediated by independent decisions of others. It’s the > requirement that the employer enter into a contract that subsidizes actions > that the employer believes to be immoral. No one, as far as I know, has > claimed that he or she can withhold payment of wages because the employee > might choose to use the money to obtain contraceptives or other services. > **** > > **** > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Wednesday, October 03, 2012 7:03 AM**** > > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > **** > > 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**** > >
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