I did not mean to say that the bishops are saying that no Catholic employer
can comply. I don't know what they are saying about that. Quite possibly
nothing. But they are saying loud and clear that the Catholic institutions
for which they are responsible cannot comply, and they are saying that in
the face of government coercion. They are obviously saying that government
coercion does not justify them in complying.
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 Marty Lederman
Sent: Wednesday, October 03, 2012 4:57 PM
To: Law & Religion issues for Law Academics
Cc: M Cathleen Kaveny
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
Doug: Is it actually the case that "the bishops say these rules are too
important to them for a following orders defense to provide moral
justification"? That is to say, have the bishops, or any other Catholic
authority, actually articulated the view that a Catholic employer will
engage in forbidden proximate material cooperation with evil if it complies
with the HHS Rule? And if so, have they provided any explanation of why
that is the case here and not, e.g., in the cases of paying taxes and
salaries, or in the case of my hypothetical "common carrier" taxi driver who
takes a woman to a clinic for an abortion?
I'm not saying there have been no such statements -- I simply haven't heard
them, and would be very grateful to be pointed to any such statement.
On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock <dlayc...@virginia.edu>
wrote:
Well, Marty's response at least seems to agree that saving money doesn't
take away the claim.
Does following government orders take away the claim? If it did, as Marty
notes, there could never be a RFRA claim. If the government funded the
orphanage, and ordered the church to take the cheaper food contract, it
would take away the church's choice - but the church would not feel at all
exonerated.
Some people feel exonerated by a following orders defense, and some do not.
And I suspect many people feel that following orders can justify violations
of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims
are never filed because people with religious objections go along when their
objections are not strong enough to motivate a difficult fight with the
government.
The bishops say these rules are too important to them for a following orders
defense to provide moral justification. And I find nothing implausible in
that claim. With respect to the drugs that they believe sometimes cause
abortions, I would be astonished if they took any other position. With
respect to ordinary contraception, I think many of us are finding it hard to
believe they take the rule so seriously, because we think the rule is so
stupid. But it is very important to the bishops, and to some conservative
Catholics, and they are saying that following orders cannot justify them in
paying for a policy that will provide these drugs.
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 Marty Lederman
Sent: Wednesday, October 03, 2012 3:26 PM
To: Law & Religion issues for Law Academics
Cc: M Cathleen Kaveny
Subject: Re: Court Rejects Religious Liberty Challenges To ACA
Mandate--interpreting "substantial burden"
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
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