If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil.
But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question *not * of whether your *volitional choice* was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral *even though you were well-intentioned*. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that *certain *action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the *choice* to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation of the norm against formal cooperation with evil. City B, however, has decided to treat cab drivers as common carriers -- they must accept all fares, no matter the destination. Our same cab driver, thinking that prostitution is unlawful, but now working in City B, abides by the law, picks up all fares without discrimination . . . and occasionally finds himself being asked to drop the passenger at a so-called house of ill-repute, a request that (like all others) he honors. In this case, he has performed exactly the same act as he did in City A, but this time, he has not violated religious tenets. Seems to be that in most material respects, the HHS Rule is more like my taxi driver in City B -- or the taxpayer in any jurisdiction -- than like your hypo of a Church that would gladly leave kids on the street in order to save a few bucks. On Wed, Oct 3, 2012 at 3:04 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > It cannot be the answer that the coverage is mandated. Whether the > coverage can be mandated is the question. The employer signs a contract, > and pays for a contract, that covers these services. But for the > regulation, he could sign and pay for a very similar contract that does not > cover these services. **** > > ** ** > > Re saving money: I’m going to tweak the facts to isolate the issue of cost > saving. I’m going to make the religious objection one that everyone would > share. I understand that these hypothetical facts are extreme. The point > is only to separate the issue of saving money from all the other issues.** > ** > > ** ** > > Suppose the church runs an orphanage with 1000 children. It invites bids > on a contract to feed the children for a year. It specifies the quantity > and quality of food. It gets two bids. **** > > ** ** > > The first bid is $1.5 million. The second bid is $1.3 million. The second > bidder specifies that after the contract is awarded, it will take the 100 > oldest children, drive them to the nearest big city, and dump them on the > street. There will be no need to feed them anymore. The church should not > worry that it is paying for this immoral act, because it isn’t paying – it > is actually paying less instead of more. But of course the church would > think itself morally responsible if it signed that contract.**** > > ** ** > > From the church’s perspective, if contraception saves money, it will do so > by preventing children from being born. Most of us think that contraception > is good thing. But if you think it an evil thing, the fact that it saves > money does not make it morally acceptable to contract for it, or to pay for > a package that includes it.**** > > ** ** > > ** ** > > ** ** > > ** ** > > Douglas Laycock**** > > Robert E. Scott Distinguished Professor of Law**** > > University of Virginia Law School**** > > 580 Massie Road**** > > Charlottesville, VA 22903**** > > 434-243-8546**** > > ** ** > > *From:* b...@jmcenter.org [mailto:b...@jmcenter.org] > *Sent:* Wednesday, October 03, 2012 1:23 PM > *To:* Douglas Laycock > *Subject:* RE: Court Rejects Religious Liberty Challenges To ACA > Mandate--interpreting "substantial burden"**** > > ** ** > > Doug, thank you for responding but I still don't comprehend your point. > (By the way, you slipped the money back into the argument.) **** > > **** > > Since the coverage is mandated and operative clauses are likely > boilerplate (thus no or virtually no "arranging" and "contracting: for the > contraceptive, etc. coverage) and under the scenario I presented that the > employer is charged nothing additional, I suspect that what is left is > merely that an employer maybe upset that his or her employees have an > opportunity to participated in the mandated services. Much to attenuated > for me to call the mandate a substantial burden on the employer's free > exercise of religion. **** > > **** > > 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 **** > > **** > > _______________________________________________ > 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. >
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