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 -Original Message- From: Steven Jamar stevenja...@gmail.com Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 10:16 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate On Sep 30, 2012, at 9:49 PM, Douglas Laycock wrote: Steve's second point -- the difference between historic exclusion of Catholics as such and contemporary exclusion of those who adhere too strictly to certain Catholic teachings -- is just Smith's holding about generally applicable laws. The whole point of RFRA was to create statutory protection not restricted to that holding. Agreed. But that doesn't make the history of status-based exclusion controlling for what is and is not a substantial burden, or even particularly relevant. They are different types of exclusion. There are reasons to protect pure-belief-based actions even in the commercial secular marketplace, but that history is not one of them. The ACA and the contraceptive mandate also have exceptions that cover rens of millions of people, so it is far from clear that this is a neutral and generally applicable law. The no-burden holding also saves the court from having to address that issue. I am not overly fond of a number of substantial burden results. But the test is substantial burden, not merely burden, and the term substantial should mean something. I think it should mean something quite substantial and be something that really effectively prohibits the exercise of religion or really makes it so hard to practice one's beliefs that one has a hard time practicing them. I understand others think it should be subjective and controlled by the adherent and that we should take his or her word for the substantiality of the effect. You may believe that OSHA is the work of the devil. But that doesn't relieve you from compliance if you choose to engage in the sort of commerce that OSHA regulates. No one is making you do that sort of work. You have alternatives. Do we really want to say the subjective burden as felt by the adherent gets past the first hurdle and then have courts start expanding compelling state interest to uphold the myriad regulations on commercial establishments? That seems to me to be a greater mischief. Perhaps RFRA should be revisited to address the back-end standard to make the balancing more like EP intermediate scrutiny. Or to consider the substantiality of the burden, the importance of the state's interest, the effect on third parties (e.g. employees in an employer setting), and the effect of ruling one way or the other on all three -- what options are available for the religious adherent employer; what costs are there to society and the government in interests of equality, equity, administration of the laws; what options are there to the employee. But that opens quite another can of worms and gives huge discretionary power to the courts. Is that really what we want here? Or do we really want the unit veto for any and all government regulations short of human sacrifice and child abuse as compelling interests? Are we going to revisit the social security cases and now say they don't need to pay the tax? I think the judge got it right here and that the alternatives are not necessarily good for free exercise in the bigger picture. Steve On Sun, 30 Sep 2012 21:32:10 -0400 Steven Jamar stevenja...@gmail.com wrote: I was quite clearly talking about religious employers in secular commerce. The religious institutions engaging in secular/religious endeavors like religious schools and hospitals are different from someone making and selling widgets. There is also quite a difference
RE: Laws barring political discrimination by private employers
Good to know. There are also some statutes like Colorado’s, which (last time I looked) prohibits discrimination on the basis of “any lawful off-the-job activity.” I’m told that these were passed by the tobacco lobby, but I have never verified that. I forgot about those last night, and I don’t know if Eugene included them in his count of statutes restricting political discrimination. 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 Volokh, Eugene Sent: Sunday, September 30, 2012 10:37 PM To: Law Religion issues for Law Academics Subject: Laws barring political discrimination by private employers Doug Laycock writes: No law prohibits political discrimination by private employers, except in DC and maybe a few other places I don't know about. But I think not very many,. It turns out that bans on some forms of political discrimination by private employers are present in states that account for about half the population, though some such bans are quite narrow (e.g., covering only discrimination based on signing initiative petitions or making political contributions) and others are considerably broader, covering a wide range of political activity or even speech more broadly. I quote and categorize these laws in Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Texas Review of Law Politics 295 (2012), http://www.trolp.org/main_pgs/issues/v16n2/Volokh.pdf. The jurisdictions include California (broad), New York (medium), Illinois (narrow), and many more. Eugene ___ 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.
RE: Laws barring political discrimination by private employers
I did indeed; the Colorado statute has been read – quite reasonably, given its text – to apply to speech as well as other off-the-job activity. Colorado also has another, much older, statute that protects employees’ political activity. (Many states besides the one I listed also bar discrimination based on how a person has voted, but I didn’t focus on those because people nowadays rarely know how their employees voted.) From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 6:59 AM To: 'Law Religion issues for Law Academics' Subject: RE: Laws barring political discrimination by private employers Good to know. There are also some statutes like Colorado’s, which (last time I looked) prohibits discrimination on the basis of “any lawful off-the-job activity.” I’m told that these were passed by the tobacco lobby, but I have never verified that. I forgot about those last night, and I don’t know if Eugene included them in his count of statutes restricting political discrimination. 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Sunday, September 30, 2012 10:37 PM To: Law Religion issues for Law Academics Subject: Laws barring political discrimination by private employers Doug Laycock writes: No law prohibits political discrimination by private employers, except in DC and maybe a few other places I don't know about. But I think not very many,. It turns out that bans on some forms of political discrimination by private employers are present in states that account for about half the population, though some such bans are quite narrow (e.g., covering only discrimination based on signing initiative petitions or making political contributions) and others are considerably broader, covering a wide range of political activity or even speech more broadly. I quote and categorize these laws in Private Employees' Speech and Political Activity: Statutory Protection Against Employer Retaliation, 16 Texas Review of Law Politics 295 (2012), http://www.trolp.org/main_pgs/issues/v16n2/Volokh.pdf. The jurisdictions include California (broad), New York (medium), Illinois (narrow), and many more. Eugene ___ 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.
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.
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Oops. Writing too fast. What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a no-burden holding in the ACA cases. Lyng and Bowen do indeed appear irrelevant. But Lee is not irrelevant; it supports a holding of substantial burden. The Court accepted the Amish claim that payment of social security taxes was forbidden by their faith, and concluded that requiring this payment “interferes with their free exercise rights.” But “not all burdens are unconstitutional. That state may justify a limitation on religious liberty . . .” And it went on to find a compelling interest in collecting taxes, including social security taxes. So in Lee, the Court said that payment of funds to the government, for a stated purpose that is religiously objectionable, is a constitutionally cognizable burden on free exercise. 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 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.
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
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 pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ 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.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edumailto: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.commailto: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.
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 employees 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 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ** ** Blogs: ** ** Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://www.mirrorofjustice.blogs.com/ ** ** *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.edureligionlaw-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
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is *not*responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? On Mon, Oct 1, 2012 at 2:11 PM, Rick Garnett rgarn...@nd.edu wrote: Dear Marty, ** ** I agree with you that a religious institution (which, I think, should include most of the institution-plaintiffs challenging the preventive-services mandate -- Catholic Charities, EWTN, the University of Notre Dame, etc.) is better positioned to frame the “substantial burden” in terms of its institutional “mission”, though I also think that the better way to handle the objection of, say, the owner of a commercial business is by asking about feasibility (tailoring, alternatives, etc.) and not by asserting (as the court here did) that there is no burden because employees often do things with their salaries to which employers object on moral grounds, etc. (I do agree that, generally speaking, there isn’t a strong “substantial burden on conscience” objection to expenditures by the government from funds raised through taxes, but also think that the problem presented by the mandate, even for commercial employers, is different.)*** * ** ** Also, I’d like to hear more from those who support the court’s reasoning in response to Alan Brownstein’s as-per-usual thoughtful e-mail, in which he expressed concerns about the “no burden here” assertion, given what would seem to be the tension between that assertion and claims that, say, allowing school-voucher recipients to send their kids to Catholic schools burdens the conscience of one who objects to such funding. If this decision were right, then wouldn’t we have a(nother) reason to overrule Flast? ** ** Best, ** ** Rick ** ** 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 http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ** ** Blogs: ** ** Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://www.mirrorofjustice.blogs.com/ ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Monday, October 01, 2012 1:48 PM *To:* Law Religion issues for Law Academics *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
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Imagine an observant Jew wants a kosher meal in prison. The prison doesn't serve kosher food. Our plaintiff says, This burdens my religion. The prison responds, No, it doesn't. You're not responsible for the food we choose to serve in prison. That's a genuinely free and independent choice that we made. It has nothing to do with you. So why is there a substantial burden there? I think it's simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of responsibility. But those notions are what they are, I think. The state can't say, Your theological notions of 'responsibility' are absurd, any more than it can say, Your theological notions about the food God requires you to eat are absurd. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ 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.
Responsibility for actions that you assist
Let me add that American law has very different views of when people are responsible for the acts of others, or when they can demand that they not assist in the acts of others. For instance, 1. Zelman sets forth one rule when it comes to taxpayers' right to object to the use of their money under the Establishment Clause. 2. Abood and Keller set forth a different rule when it comes to fee payers' right to object to the use of their fees (as opposed to general taxes) under the Free Speech Clause. 3. Criminal law in most jurisdictions holds people responsible for aiding and abetting only when they have the purpose of aiding conduct. 4. Criminal law in some jurisdictions, or as to some crimes, holds people responsible for aiding and abetting when they have the knowledge that they are aiding the conduct. 5. In some jurisdictions, e.g., in New York, the standard for responsibility under special-purpose statutes is close to recklessness (e.g., believing it probable under the New York statute). 6. Special purpose criminal laws (as opposed to general aiding and abetting law) sometimes have special rules for holding people responsible for doing things that assist certain kinds of misconduct based; consider, for instance, the federal ban on providing material assistance to designated terrorist organizations, or the laws in some states that criminalize recklessly facilitate escape from criminal custody. 7. Tort law may in some situations hold people liable for aiding and abetting others' misconduct so long as the person was negligent about the possibility that the other person would use the person's help for bad purposes. (Consider negligent entrustment claims, for instance, whether as to cars, guns, or what have you.) I tend to agree with Chris and the others who take the view that the RFRA substantial burden question ought not be influenced by this, but rather by whether the claimant sincerely believes that he is asked to do something that he sees as sinful. But the fact that our own legal system has such a complex view of when assistance is enough to make the assister responsible should further counsel in favor of focusing on the claimant's beliefs about responsibility, rather than trying to impose some rule of its own about responsibility. None of this, of course, deals with whether the law could still be applied to objectors because (1) such an application passes strict scrutiny, or (2) the legislature carves out the relevant statute from RFRA. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Monday, October 01, 2012 12:37 PM To: 'Law Religion issues for Law Academics' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I don't mean to speak for Alan or Rick. I guess a first response to Marty is that Zelman only states a rule about the Establishment Clause. It doesn't create some universal principle that we are not responsible for the choices of others. It seems to me that the latter would go too far; tort, for example, sometimes imposes liability on people for acts of others that they enable even if they don't choose. But there are two better responses: (1)The Catholic Church might simply have a different view of responsibility (i.e., when we should think ourselves 'responsible' for the acts of others) than the Court in Zelman. As Marty noted earlier, the church indeed has theological doctrines about responsibility which long predated Zelman. Why would the Catholic Church be bound in its theological views by the Court's ideas of responsibility in Zelman? Why would that be the natural limit of our toleration? (2) Maybe the Catholic Church feels a need not only to not endorse abortion, but to affirmatively discourage it-whenever the Church is involved, the church has a duty to single abortion out for disfavored treatment. If that's the church's position, why isn't that a substantial burden? Best, Chris From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. 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 -Original Message- From: Christopher Lund l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ 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.
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Must the prison supply kosher meat (and build a kosher kitchen) or is it enough that it supplies nutritious vegetarian food, even though other prisoners get meat? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 4:28 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. 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.commailto:hamilto...@aol.com -Original Message- From: Christopher Lund l...@wayne.edumailto:l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu?] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
No. The logic of the decision could be pushed that far in a parallel universe or by faculty like us who may indeed inhabit a parallel universe, but such a case is so easily distinguishable from a commercial business as to be essentially irrelevant. Steve On Oct 1, 2012, at 11:57 AM, Rick Garnett 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Education: the path from cocky ignorance to miserable uncertainty. Mark Twain ___ 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks for your post, Marty. Rick, of course, will have to speak for himself. But I don't believe that the independent choice of parents as to how they will spend education vouchers should end the Establishment Clause inquiry. And I also believe that the government's use of taxes to engage in activities that violate the taxpayer's religious beliefs burden the taxpayer's religious liberty. This doesn't mean that the individual's religious liberty interests should be always be vindicated in these kinds of cases. I support a religion clause jurisprudence that defines harm or burden or infringement fairly broadly so that claims can get on the constitutional playing field. I would assign most of the work in determining whether state action is constitutional to the adjudication of claims - not to a decision on burden that cuts off all other analysis. (I also think that while some burdens may not be sufficient to invoke judicial review standing alone, combined with other religious and equality interests they should be adjudicated on the merits.) With regard to the several factors that Marty lists: To begin with, I would rephrase Marty's basic question this way. Is it really fair for religious liberty purposes to attribute to the employer here the employee's decision to use contraceptives when the employer sincerely believes that G-d prohibits him from facilitating the use of contraceptives in this way? I think the answer is Yes. More specifically, as others have suggested, I don't see how the coverage being compelled by law alters the analysis. The fact that a religious believer is compelled by a law to do hundreds of things that do not violate his faith does not alter the fact that one mandate requires him to do what his religion prohibits. One might argue that a broad law creates so many instances in which religious liberty might be abridged that the government has a strong administrative convenience justification for rejecting accommodations for everyone. But that argument goes to justification, not to burden. As to disclaimers, I'm not persuaded that a disclaimer really resolves concerns about complicity with or facilitating wrongful acts. But let's assume that one of the concerns here has to do with perceptions of complicity by others. There are religious rules that are arguably prophylactic measures. There are rules that are designed to remind people of things they are supposed to do. There may be alternative ways to accomplish these religious goals. The question is whether religious individuals and institutions are permitted to follow the rules they believe are required by their faith to accomplish religious purposes or whether the state gets to require them to violate their beliefs because the state thinks that different means are available and preferable for furthering their religious purposes. For example, one of the justifications for prohibiting Jews from eating chicken and cheese (milk and meat) even though a chicken obviously doesn't produce milk and doesn't really fit into the biblical prohibition is that people might see people eating a chicken and cheese sandwich, not understand that the meat in the sandwich is from a chicken, and begin to believe that it is OK to eat milk with meat. Obviously, there are alternative ways to avoid this misunderstanding. I don't think that states or courts get to dismiss the way that Jewish tradition handles the problem because they think there is a better way to deal with the issue. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 11:52 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
To Sandy, the “substantial burden” part of this will depend on what the plaintiff believes. If the Jewish prisoner believes that he has a religious obligation to eat Kosher meat, then there will be a “substantial burden” if the prison doesn’t provide Kosher meat. But by having such a broad view of what his religion requires, the prisoner creates other difficulties for himself. A sincerity problem perhaps, and certainly a compelling interest problem. I haven’t read many of these cases, but I have read some. And my sense is that if the prison supplies nutritious vegetarian food, no court would require the prison to build a Kosher kitchen. To Marci, to the extent that the prisoner can only eat something his religion forbids, that’s the clearest form of a substantial burden. That kind of burden is what the Catholic Church claims here. No doubt that there are harder cases. The prison provides some Kosher foods, maybe enough to survive on, but not enough for the kind of diet that other prisoners have. I don’t have firm views about those situations, although I think it’s clear that the “government-requires-what-my-religion-forbids” situation is not the only case of a substantial burden. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Monday, October 01, 2012 4:36 PM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Must the prison supply kosher meat (and build a kosher kitchen) or is it enough that it supplies nutritious vegetarian food, even though other prisoners get meat? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 4:28 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. 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 -Original Message- From: Christopher Lund l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu? ] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could
Re: Responsibility for actions that you assist
One other variation: nuisance and related bodies of law generally hold landlords responsible for what tenants do on the property. On Mon, 1 Oct 2012 12:55:45 -0700 Volokh, Eugene vol...@law.ucla.edu wrote: Let me add that American law has very different views of when people are responsible for the acts of others, or when they can demand that they not assist in the acts of others. For instance, 1. Zelman sets forth one rule when it comes to taxpayers' right to object to the use of their money under the Establishment Clause. 2. Abood and Keller set forth a different rule when it comes to fee payers' right to object to the use of their fees (as opposed to general taxes) under the Free Speech Clause. 3. Criminal law in most jurisdictions holds people responsible for aiding and abetting only when they have the purpose of aiding conduct. 4. Criminal law in some jurisdictions, or as to some crimes, holds people responsible for aiding and abetting when they have the knowledge that they are aiding the conduct. 5. In some jurisdictions, e.g., in New York, the standard for responsibility under special-purpose statutes is close to recklessness (e.g., believing it probable under the New York statute). 6. Special purpose criminal laws (as opposed to general aiding and abetting law) sometimes have special rules for holding people responsible for doing things that assist certain kinds of misconduct based; consider, for instance, the federal ban on providing material assistance to designated terrorist organizations, or the laws in some states that criminalize recklessly facilitate escape from criminal custody. 7. Tort law may in some situations hold people liable for aiding and abetting others' misconduct so long as the person was negligent about the possibility that the other person would use the person's help for bad purposes. (Consider negligent entrustment claims, for instance, whether as to cars, guns, or what have you.) I tend to agree with Chris and the others who take the view that the RFRA substantial burden question ought not be influenced by this, but rather by whether the claimant sincerely believes that he is asked to do something that he sees as sinful. But the fact that our own legal system has such a complex view of when assistance is enough to make the assister responsible should further counsel in favor of focusing on the claimant's beliefs about responsibility, rather than trying to impose some rule of its own about responsibility. None of this, of course, deals with whether the law could still be applied to objectors because (1) such an application passes strict scrutiny, or (2) the legislature carves out the relevant statute from RFRA. Eugene ___ 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.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Steve -- I agree with what you've said. I would point out that you used the term burden, not substantial burden. My point is that I the contraceptive mandate burden's an employer's free exercise if they are opposed to the mandate for religious reasons -- but, importantly, they are not substantially burdened in my view (as I believe Judge Jackson correctly analyzed the burden). The religious burden is de minimis and remote. And there is no economic burden as the mandated coverage is, in the aggregate, is a cost saver. In addition, I believe a fair analogy would be to the Lemon test's excessive entanglement prong. Mere entanglement doesn't constitute an Establishment Clause violation just as a mere burden doesn't establish a Free Exercise Clause violation here. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On September 29, 2012 at 11:44 PM Steven Jamar stevenja...@gmail.com wrote: Of course the law burdens religious exercise -- if you take religious exercise to that extreme meaning. If you choose to take it to that extreme, then you cannot be in that line of work or you must pay the penalty for engaging in that kind of work. You can't simply ignore civil law because you don't like it. I didn't like my taxes going to the war in Iraq (and I can think of lots of other things I don't like. And I have moral objections to many things, though fewer things than those I don't like. And I think torture is violates just about every religion out there. And yet I must pay for these things I don't believe in. The social security cases and other cases were properly decided -- following the same economic rules as everyone else when you enter the market place is not a substantial burden on your exercise. If you can't do it, get out of the market and into something where you can follow your religion. Free exercise is not a free pass. Steve On Sep 29, 2012, at 10:52 PM, Walsh, Kevin wrote: The court appears to have recharacterized the allegations in the RFRA claim to make it easier to dismiss. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Saturday, September 29, 2012 10:30 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate For what it's worth, here are the allegations in the complaint relevant to establishing the alleged burden on religious exercise: Plaintiff O’Brien believes that he cannot pay for and provide coverage for contraceptives, sterilization, abortion or related education and counseling without violating his religious beliefs. Plaintiffs are . . . confronted with choosing between complying with [the HHS mandate] in violation of their religious beliefs, or paying ruinous fines that would have a crippling impact on their ability to survive economically. * * * The Mandate coerces Plaintiffs into complying with its requirements or abandoning integral components of the Plaintiffs’ religiously inspired mission and values. Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.” The Mandate/Final Rule, by requiring Plaintiffs to provide said coverage, imposes a substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government. On Sat, Sep 29, 2012 at 9:43 PM, Walsh, Kevin kwa...@richmond.edumailto:kwa...@richmond.edu wrote: The court's carelessness with respect to substantial burden prevented it from facing up to the more interesting legal question re: exercise of religion. I say that the court was careless because its analysis depends upon a tendentious characterization of the nature of the religious objection. How does someone run a business with 87 employees if his religion prohibits an outlay of funds that might eventually be used by a third party in a manner inconsistent with one's values? That kind of religious belief would make it difficult to gas up a car and head into work, or even just to stay home and surf the internet. Maybe, instead, the objection has something to do with being forced by the government to pay for a particular kind of policy (rather than pay taxes and have the government purchase the policy instead). In the law, there is such a thing as winning too much. I suspect that is the federal government's view of this sloppy decision. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
Mark, Barnette is direct and we can agree that compelled recitation violated Barnette's Free Exercise of religion (and I hope we could agree that the current Pledge with under God violates the Establishment Clause). However, I believe that the court was correct in noting that once employment is introduced to the equation, we start getting degrees of separation and a reduction of the burden (i.e., becomes remote). Personally, I don't find your direct payment scenario a substantial burden either. An employer pays thousands (or millions for a large employer) of invoices each year. If they want to stay in business, they pay their bills. Bob Ritter On September 30, 2012 at 1:36 AM Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: So suppose the law specifically required the employer to pay directly to a clinic its charges for an employee’s abortion. The employee has an abortion at a clinic, tells the clinic to send the bill to the employer, and the employer then must pay the bill on pain of fines that will put the employer out of business. The employer is a practicing Catholic who follows the Church’s teachings. Is this a substantial burden on the employer’s exercise of religion? Will anyone argue that this is not? Now what if the law is changed to require the employer to buy insurance for employees that specifically and only covers abortion procedures? And now what if the law is changed to require the employer to buy health insurance that covers lots of health costs and also covers abortions? Can we say that there no longer is a substantial burden on the employer’s exercise of religion because now the employer is required to do more? Of course there is a long history of careful, thoughtful moral analysis that treats the directness of a person’s involvement in an action as a key indicator of the person’s moral responsibility for it. It is not idiosyncratic at all for the employer to believe that he or she is being coerced into violating religious conscience by being required specifically to subsidize an activity that he or she believes is wrong, and, even worse, by being required to agree specifically to subsidize that activity by entering into a contract providing for it to be subsidized. This is not at all the same thing as paying a salary that an employee may use in a way that the is contrary to the employer’s religious beliefs (for example, obtaining an abortion). The payment of the salary does not require the employer to agree specifically to subsidize that activity. But by entering into a health insurance contract that specifically covers abortions, the employer does so agree and is, according to a very reasonable moral analysis, complicit. If you pay taxes, you do not have to enter into an agreement that your money may be used to wage war or to pay for other things that you could not, as a matter of religious conscience, be involved in. The government requires you to pay the taxes, and then the government decides what to do with the money, with no need for you to agree at all. Same for payment of a salary that the employee may use as the employee chooses. You do not have to agree that the employee may obtain an abortion, nor do you pay the salary to allow the employee to obtain the abortion; you are not complicit. The court in this case in effect chose its own version of moral casuistry, and decided that an action that would not, on the court’s view, create complicity in an action, could not as a matter of law burden the employer’s exercise of religion. That is the same as the court deciding that a tenet of the employer’s religion is false, because the moral analysis that leads to the conclusion of complicity is part of the employer’s religious beliefs. Of course the finding of a substantial burden does not end the analysis. If we assume that the govt interest is compelling, we have to ask whether the govt can accomplish its purposes without violating the religious conscience of the employer (or the taxpayer); is the government using an approach that minimizes the imposition on religious conscience (the least restrictive means requirement of RFRA)? The government could not function if every taxpayer had a veto over how his or her taxes were used. But a health care system can cover abortions or whatever procedures the govt wants to cover without requiring religious people to agree specifically to subsidize what they consider to be religiously prohibited. Employers who refuse to buy health insurance for employees that cover such procedures can be taxed for not doing so, in an amount that is sufficient to allow the govt to provide supplemental insurance policies to employees who want them. The employer may not like having to pay a tax that could be seen to subsidize an activity with which he or she disagrees on religious grounds (though money is fungible and thus it isn’t clear that this
Re: Sebelius query
CJ Roberts is correct to look at the substance and not the word. In substance it is a tax. It is not a penalty. On Oct 1, 2012, at 7:28 PM, Ilya Somin wrote: This argument ignores the fact that the problem with the tax argument for the mandate was never that it was not for the general welfare but that the mandate was not a tax at all, but a penalty. If the mandate is not a tax, it cannot be authorized by the Tax Clause, no matter how much it benefits the general welfare. That's what the lower courts that ruled on the issue unanimously concluded. Even those judges who accepted the broadest possibly interpretation of the Commerce Clause still rejected the tax argument. I also don't see any way that rejecting the Commerce Clause somehow strengthens the tax argument, except in the political sense that decision endorsing the latter might be more palatable to conservatives if it also rejects the former. Ilya Somin Professor of Law Editor, Supreme Court Economic Review George Mason University School of Law 3301 Fairfax Dr. Arlington, VA 22201 ph: 703-993-8069 fax: 703-993-8124 e-mail: iso...@gmu.edu Website: http://mason.gmu.edu/~isomin/ SSRN Page: http://ssrn.com/author=39 -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ ___ 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.
Substantial burden and the merit of RFRAs
As one of the few people on this list who both supports Smith and supports jurisdiction-by-jurisdiction RFRAs, let me put in a plug for my theory. The worry (expressed, for instance, by Sandy) that religious objections, both sincere and insincere, can undermine an important law is a serious worry. But the substantial burden test is the wrong place to take that worry into account. The substantial burden test should be about whether the law sufficiently interferes with people's ability to comply with their felt religious obligations. The place for considering the government interest in uniformity is elsewhere. One obvious place where the government interest can be considered is the compelling interest test. But another -- available under the RFRA model but not under the Sherbert/Yoder model -- is in the legislature. If a legislature thinks that some law must be applied uniformly, notwithstanding religious objections, it can just exempt that law from RFRA's purview, either at the time it enacts the law or after an exception is carved out by a court. (Of course, there could be political difficulties with that, but that would just reflect a political judgment against the proposition that the law must indeed be applied without any room for objections.) Given this power, I don't see why we need to depart from the Thomas v. Review Board vision of the substantial burden threshold, and jeopardize the equality and nonentanglement values that this Thomas vision embodies. Eugene ___ 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.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
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.eduwrote: 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
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
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.eduwrote: 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)
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
About 45 years ago I left the Catholic Church and don't keep up with its teachings. This being said, it is my understanding that the Catholic Church has not always opposed abortion. If this true, is long tradition true? I also take exception to characterizing the Affordable Care Act and/or the contraceptive mandate as trampling on someone's religion. In a just society, multiple interests have to be weighed. The employer is not the only person in interest. I appears to me that those who disagreed with Judge Jackson's reasoning ignore that (1) employment in a commercial setting is nonreligious and (2) the purpose of the mandate is to provide health care for women, including making it on par with health care for men. Like the judge, I find Smith rather than RFRA controlling. Bob Ritter On September 30, 2012 at 11:56 AM Douglas Laycock dlayc...@virginia.edu wrote: Mark references a long tradition of religious thought about cooperation with evil, and how close is too close -- a tradition that is found in both Christian and Jewish teachings (and probably other faiths too, but I know less about those). This tradition was probably not explained to the court. It may or may not have made any difference. Judges have been attracted to no-burden holdings since RFRA was enacted, I think because it seems to make a hard case go away. They don't have to limit the reach of the government's program, they don't announce that some modest government interest is actually compelling, and they don't have to admit that they are letting the government trample on someone's religion. Intense believers in these cases are often represented by intensely believing attorneys, and they too often treat the burden on religion as obvious, and do a lousy job of developing the issue. I don't know if that happened here, but I suspect that it did, and of course I don't know whether it would have mattered. A substantial secular business as plaintiff likely affected the initial judicial reaction to this case. But the reasoning appears to be equally applicable to religious non-profits controlled by bishops or other religious authorities. On Sat, 29 Sep 2012 22:36:44 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course there is a long history of careful, thoughtful moral analysis that treats the directness of a person's involvement in an action as a key indicator of the person's moral responsibility for it. It is not idiosyncratic at all for the employer to believe that he or she is being coerced into violating religious conscience by being required specifically to subsidize an activity that he or she believes is wrong, and, even worse, by being required to agree specifically to subsidize that activity by entering into a contract providing for it to be subsidized. 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.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks for the clarification, Doug. I had missed that particular part of the exchange. On the distinction you suggest, I think that the characterization of the requirement as purchasing a package of services does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to *make available* to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much *less* than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is affordable to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a package of services *to the employer*. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) That feels to me quite a bit different from an employer purchasing a package of services. Imagine, for instance, that the Rule instead required employers to pay the same amount of money to a *government* *agency * (rather than to a private insurance company) for the specific purpose of funding a government-provided health insurance plan . . . a plan that works *exactly like the plans in question here*, covering the exact same goods and services, including contraceptive services. In the case of such a Medicare tax -- one that these same employers probably pay currently -- would you describe it as the employer being forced to purchase a package of services? Would Catholic employers claim that it forces them to cooperate with evil in a way that their religion forbids? On Mon, Oct 1, 2012 at 8:01 PM, Douglas Laycock dlayc...@virginia.eduwrote: 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
The beliefs can be serious and strong. But that alone is not sufficient to make the burden substantial. Reminds me of taxpayer standing cases. A federal taxpayer generally doesn't have standing to challenge appropriations because his or her tax dollars cannot be specifically traced to the objection expenditure. De minimis. So no standing. On the other end is Barnette -- where Barnette was compelled to salute the American flag. The contraceptive mandate is somewhere in between. The employer isn't forced to use contraceptives. Isn't even forced to say their use is morally OK. In fact, as Judge Jackson notes, can even suggest to employees not to use them. The line unfortunately must be drawn somewhere on the slippery slope. A lot of what I'm reading on the is blog written by those who oppose Judge Jackson's decision sounds more like disguised whining than sound arguments that the mandate imposes a substantial burden on employers with a religious viewpoint opposed to contraception. Bob Ritter On September 30, 2012 at 2:30 PM Berg, Thomas C. tcb...@stthomas.edu wrote: Marty, The fact that services must be covered in the plan by virtue of legal mandate (are required by law) can't be enough to counter the asserion of a burden, can it--or even be a significant factor in countering it? That would do away with virtually every free exercise claim (I'm only providing facilities for an abortion, or I'm only receiving a blood transfusion, under legal compulsion). You place a lot of weight on the claim that most Catholic theologians say this isn't cooperation with evil, and that no one has articulated a serious argument that distinguishes this and paying salaries or taxes. I don't think those things are true (can one conference show it?): consider, for example, Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's argument here about inclusion of the services in the plan language. You and others may not find those arguments convincing. But rejecting the burden claim based on finding the distinction unconvincing, or on the existence of a great deal of skepticism among [Catholic] theologians, can't be squared--can it?--with Thomas v. Review Board, where the Court said that Thomas's judgment on what work would cooperate with the evil of arms production should be deferred to even though other Jehovah's Witnesses disagreed. Courts are not arbiters of scriptural interpretation; the court can't dismiss the! claim at the threshold because it concludes the asserted belief is not logical, not consistent, etc. Occasionally you seem to be treating this as a question of remoteness of facilitation for burden purposes independent of Catholic moral thought; but more often you return (as I think one must in assessing burden) to asking why claimants believe this is material cooperation with evil, from a Catholic moral perspective. That latter question, it seems to me, falls squarely within the restrictions of Thomas v. Review Board not to second-guess the claimant's understanding of its obligations. Tom - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 11:56 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
So it is just a question of line drawing after all. A. Is it at taxation with taxes paying for things you don't like? B. Or is it paying a salary or wages that will be used by some for things you don't like? C. Or is it providing mandated benefits for things you don't like? D. Or is it paying out of pocket for the thing you don't like? E. Or is it being required to actually do the thing you don't like (administer the pill, do the abortion yourself)? I understand the distinction some want to make, but don't agree with it. The requirement to provide health insurance vitiates the erstwhile agreement. I get that some don't see it that way. But it is not for the individual to decide where to draw the line for substantial burden -- that is a legal standard to be applied by the courts and drawing the line in the ACA case between C and D above is fully defensible on all grounds, philosophical and legal and practical -- though one can curtail the causal link elsewhere for other purposes. Thus the substantial burden is the right place to decide this and many other cases, rather than compelling interest and least restrictive alternative test. As we have seen in the EP cases, least restrictive alternative can be a nearly insurmountable bar since a decent lawyer can always find some alternative that, upon reflection and analysis is less restrictive, and there is no telling what a compelling interest would be in this setting. There simply are no standards for that yet. If the court had ruled that there was a compelling interest here the same people would be attacking the decision on the grounds that ACA's provisions are not a compelling state interest and even if they are, the use of ACA to accomplish the provisions of those benefits is not the least restrictive alternative because less restrictive would be to have an exception granted to religious claimants, even those engaged in ordinary commerce as employers. Steve On Oct 1, 2012, at 8:01 PM, Douglas Laycock 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
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
On the law we have, the employer buys the insurance policy. Different policies cover different packages of benefits. These employers feel morally responsible for the package they buy. Of course they are generally entitled to define their own religious beliefs. But in any event, that sense of moral responsibility for the package they buy does not strike me as at all unreasonable. They are contracting with the insurer, and paying the insurer, to assume a contractual obligation to pay for contraception, emergency contraception, and (I think) sterilization. And of course, many of these plans are self-insured. In those cases, the connection is even more direct; the employer is commiting itself to pay for these services whenever asked, and it is paying for them. On Mon, 1 Oct 2012 20:28:06 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Thanks for the clarification, Doug. I had missed that particular part of the exchange. On the distinction you suggest, I think that the characterization of the requirement as purchasing a package of services does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to *make available* to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much *less* than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is affordable to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a package of services *to the employer*. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) That feels to me quite a bit different from an employer purchasing a package of services. Imagine, for instance, that the Rule instead required employers to pay the same amount of money to a *government* *agency * (rather than to a private insurance company) for the specific purpose of funding a government-provided health insurance plan . . . a plan that works *exactly like the plans in question here*, covering the exact same goods and services, including contraceptive services. In the case of such a Medicare tax -- one that these same employers probably pay currently -- would you describe it as the employer being forced to purchase a package of services? Would Catholic employers claim that it forces them to cooperate with evil in a way that their religion forbids? 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.
