RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic theologian, who takes the view that the payment of taxes or salaries is wrongful just because the employer knows that they will be put to use for contraception and (in the case of salaries) abortions . . . and many other things, besides, that are wrongful in the eyes of the employer. Thus the question here is whether the state ought to take at face value the assertions of some employers that the moral obligation changes dramatically when the money is used for partial subsidization of an insurance plan, rather than for taxes or salaries. I actually think this is a complex question, as to which I deeply appreciate the many thoughtful views others have contributed to this thread. But whatever the merits of that distinction, the case is a far cry from compelling the employer to kill another human being. On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock dlayc...@virginia.eduwrote:
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.eduwrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *b...@jmcenter.org *Sent:* Tuesday, October 02, 2012 11:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a
Re: Contraception and Conscience: A Symposium on Religious Liberty, Women's Health, and the HHS Rule on Provision of Birth Control Coverage for Employees
The videos of our conference are now posted, on a site where we have also posted many of the most important resources (opinions, briefs, the Rule, articles, blogposts, etc.) related to the debate. Hope you find it useful. Please let me know if you have any reactions or suggestions of sources to add to the page: http://berkleycenter.georgetown.edu/essays/resources-and-background-on-contraception-and-conscience Thanks, Marty On Fri, Sep 14, 2012 at 3:39 PM, Marty Lederman lederman.ma...@gmail.comwrote: Please excuse the plug. I hope this is something that those of you in the D.C, environs and beyond might be interested in attending. Thanks *Contraception and Conscience: A Symposium on Religious Liberty, Women’s Health, and the HHS Rule on Provision of Birth Control Coverage for Employees * Georgetown University Law Center McDonough Hall Philip A. Hart Auditorium 600 New Jersey Avenue, N.W. Washington, DC Friday, September 21, 2012 9:00 a.m.-4:00 p.m. A conference examining the legal, theological, health, equality, and ethical issues relating to the recent Rule promulgated by the U.S. Department of Health and Human Services on “Coverage of Preventive Services Under the Patient Protection and Affordable Care Act.” The symposium brings together legal, religious, and cultural scholars and practitioners for a day-long conversation about the increasingly contentious public debate surrounding the HHS Rule requiring employers to subsidize preventive health services for employees, the religious accommodations in the HHS rule, and the lawsuits filed by religious objectors challenging the rule. *Continental Breakfast—8:30-9:00 * *Introduction—9:00-9:10 *Dean William M. Treanor, Georgetown University Law Center * Panel One – 9:10-10:45 * *The Legal Challenges to the HHS Contraception Rule*. What is the nature of the HHS Rule and its religious accommodations? What is the status of the more than two dozen lawsuits challenging the HHS Rule? How are the courts likely to resolve the statutory and constitutional issues? How do claims of religious conscience apply to institutional employers, including for-profit employers? What are the relevant state interests—should the Rule be viewed as simply about enabling access to preventive health care, or also about ensuring equality in the workplace? How do these cases reflect broader trends in the development of the law of religious liberty? How should HHS frame its promised additional religious accommodation? *Panelists *Martin Lederman, Georgetown University Law Center Louise Melling, American Civil Liberties Union Melissa Rogers,Wake Forest University Divinity School, Center for Religion and Public Affairs Robert Vischer, University of St. Thomas School of Law Lori Windham, Becket Fund for Religious Liberty *Panel Two – 11:00-12:45 * *What is the Burden on Religious Exercise*? Does the HHS Rule put religious employers to an untenable choice between obeying the law and honoring religious obligations, and if so, how? Does it require individuals or entities to “cooperate with evil” in a manner that their faith forbids? Does compliance with the law prevent them from “bearing witness” to their faith or create “scandal” by conveying endorsement of activities to which the employer morally objects? *Panelists *Lisa Sowle Cahill, Boston College Patrick Deneen, University of Notre Dame Cathleen Kaveny, University of Notre Dame Michael Kessler, Georgetown University John Langan, S.J., Georgetown University Robert Tuttle, George Washington University School of Law *Panel Three – 2:15-4:00 * *A Broader Focus*. How and why did this particular issue engender such concern and controversy? What are the historical antecedents? What does it tell us about how religious communities and institutions (especially those involved in provision of education and social services) can and should navigate rapidly changing norms in the public square? What are the implications of this debate for preventive health services? For women’s equality in the workplace and elsewhere in public life? What are the ethical implications for physicians and other health-care providers? *Panelists *Gregg Bloche, Georgetown University Law Center Tracy Fessenden, Arizona State University Eduardo Peñalver, Cornell University Law School Robin West, Georgetown University Law Center Robin Fretwell Wilson, Washington Lee University School of Law *Please RSVP by September 19 to rs...@law.georgetown.edu * The conference is co-sponsored by the Georgetown University Law Center and the Berkley Center for Religion, Peace, and World Affairs at Georgetown University. It is made possible through a grant from the Ford Foundation. ___ 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
The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Can I ask a quick question for people like Marci, Marty, and others who doubt the existence of a “substantial burden”? What about United States v. Lee? The Amish object to paying Social Security taxes. The government makes them. The decision to use the taxes for Social Security is the government’s, not the Amish. The Amish say, “Well, we object to giving you money to pay for that.” The Court says there’s a burden. Isn’t this case just Lee again? What am I missing? (If I’ve missed earlier posts discussing this, I’m sorry.) Best, Chris ___ 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
But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel: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.
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Re: Chris Lund's question about Lee -- The Amish take care of their own who are disabled or no longer able to work. They didn't want to pay twice -- once for FICA contributions, and again in their own community. And the FICA contributions were earmarked for just that use. Employers objecting to the ACA mandate are not concerned about paying twice. They want to be immune from even the appearance of support for these services, even in a context where they can openly condemn the services. The religious entity employers (who can refuse to hire those who use such services) don't even have to pay once. They just want to be entirely out of the causation loop between ACA policies and the provision of pregnancy prevention services. Many taxpayers would like to be out of the causation loop between paying taxes and financing causes they find deeply immoral -- the death penalty, some or all wars, etc. Of course, we can handle this on the compelling interest side (need for uniformity), but the question of attenuation and distance between the status (employer, taxpayer) and the conduct remains. The question does not disappear because the claimant says so. On Wed, Oct 3, 2012 at 10:35 AM, Christopher Lund l...@wayne.edu wrote: Can I ask a quick question for people like Marci, Marty, and others who doubt the existence of a “substantial burden”? ** ** What about *United States v. Lee*? The Amish object to paying Social Security taxes. The government makes them. The decision to use the taxes for Social Security is the government’s, not the Amish. The Amish say, “Well, we object to giving you money to pay for that.” The Court says there’s a burden. Isn’t this case just *Lee *again? What am I missing? (If I’ve missed earlier posts discussing this, I’m sorry.) ** ** Best, Chris ** ** ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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
Isn't that like saying, if it's OK for you to 'produc[e] the raw product necessary for the production of any kind of tank,' why is working on tank turrets any different?? Why isn't the answer much like that given in Thomas: But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 ___ 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 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
I think Doug is right that it doesn't matter whether it costs money or saves money. The objection is any money going to the religiously prohibited use. You see this kind of argument in Establishment Clause cases. The government says to a taxpayer, You need to pay money to fund a religious school. The taxpayer says, I object to my money supporting the religious functions of the school. The government says, Well, you'd have to pay for a public school anyway, and that would cost more. So you're just saving money this way. The government's logic here was rejected, and I think rightly, in Smith v. Jefferson County Bd. of School Com'rs, 641 F.3d 197, 211 (6th Cir. 2011) (A municipal taxpayer has standing to challenge any unconstitutional appropriation or expenditure, regardless of whether more money would have been spent had the government remained within constitutional bounds. Taxpayer standing in this context will not turn on whether it was a bargain to violate the Constitution.). Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 10:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
And the point then, Marty, is that for centuries there has been a respectable mode of moral analysis in which the directness of involvement in an action is related to moral complicity. Buying an insurance policy that constitutes an agreement by the employer to subsidize a specific activity is a much more direct involvement than just paying wages that an employee may use in any way the employee chooses. Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 ___ 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 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
Mark: My point is that, as far as I know, for centuries *neither *case has been considered impermissible cooperation with evil under the mode of moral analysis you invoke (which I agree is respectable, indeed). Of course if the employer affirmatively *chose* to cover contraception, or had a legal choice whether to accept a plan with it or without it, and chose the former, that would be a form of *formal *cooperation with evil, which is proscribed (assuming, as I am here for sake of argument, that contraception is in fact evil from the employer's perspective). But absent such consent or choice, as here, the question is whether the material cooperation is sufficiently proximate -- and my understanding is that the proximity in these cases would be the same, and *not *sufficient to raise the prospect of impermissible cooperation. FWIW, Cathy Kaveny (copied here) offered a really fantastic summary of the Catholic doctrine on this at the beginning of our second panel: http://www.youtube.com/watch?v=1J4rCsq732c On Wed, Oct 3, 2012 at 11:15 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: And the point then, Marty, is that for centuries there has been a respectable mode of moral analysis in which the directness of involvement in an action is related to moral complicity. Buying an insurance policy that constitutes an agreement by the employer to subsidize a specific activity is a much more direct involvement than just paying wages that an employee may use in any way the employee chooses. ** ** Mark ** ** ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 7:49 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer’s money mediated by independent decisions of others. It’s the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 7:03 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe,
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Eugene has it exactly right. On a related note, if, as some people have claimed, insurance premiums would be higher if contraceptive, sterilization etc. services were not covered (due to additional pregnancies), then it becomes perfectly obvious that the objection is not a disguised attempt to avoid costs. The analogy is imperfect, but it's like a taxpayer being allowed to check a box on a tax return that will cause the taxpayer to have to pay 10% extra in taxes, but will also cause the govt to segregate the taxpayer's payment (into a lockbox?) so that none of the money is traceable to payment for armaments. A taxpayer who checks the box certainly can't be accused of claiming a conscientious objection to war in order to save money. (The analogy is imperfect for various reasons. For example, one who pays taxes is not being required to assent to the use of the taxes for any purpose. It also seems unlikely that insurance rates actually will be lower if contraception is covered. The main effect of the HHS requirement, insofar as it deals with contraception, may be that people switch from inexpensive birth control methods - e.g., generic pills that have been on the market for a long time - to more expensive kinds - e.g., the latest name brand version that is still under patent. The requirement, if I understand it correctly, requires coverage of all FDA approved contraceptives (without a copay and without a higher copay for nongeneric drugs. I wonder whether the pharmaceutical companies helped write it.) Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, October 03, 2012 8:07 AM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Isn't that like saying, if it's OK for you to 'produc[e] the raw product necessary for the production of any kind of tank,' why is working on tank turrets any different?? Why isn't the answer much like that given in Thomas: But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks, Chip. A couple responses. The way I read Lee, the burden was not that the Amish had to pay twice. The burden was that they had to pay the government at all. See, e.g., Lee, 455 U.S. at 257 (We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.). True enough that the Amish took care of their own. But this seems like a background fact necessary to explain (and tacitly validate) the Amish's religious beliefs; it does not seem necessary to the finding of a burden. Footnote 6 of the opinion refers to another organization (Sai Baba) that the Court says does not provide for their own members. The Court mentions their views as a reason to think that the Amish belief is bona fide; the Court does not suggest that there would be no burden in that case. But your post also led me down a logical trail that makes me think the burden in the ACA case might be clearer than the burden in Lee. The Amish's religious objection in Lee starts with a Biblical requirement that religious communities provide for their own members. The government's brief in Lee sensibly asks, Why is this a burden? You can provide for your own people, but still pay social security taxes. (See U.S. Br. in Lee, at 10-11.) The Amish respond in their brief by saying, No, well, also it's a sin to pay the taxes at all. It's not clear to me this is the most natural reading of the Biblical text. But the Supreme Court doesn't want to get into that. So they (again citing Thomas) say, We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. I think that whole accept appellee's contention language is important-the Court may not necessarily believe it, but will not investigate it further. The Court in Lee thus goes to lengths to interpret the religious objection as the kind of religious objection that the ACA plaintiffs raise: The government is requiring us to pay money that will go toward things to which we religiously object. And the Court unanimously finds that to be a burden. Of course, none of this speaks to the sincerity or the compelling-interest parts of it. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, October 03, 2012 10:59 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Re: Chris Lund's question about Lee -- The Amish take care of their own who are disabled or no longer able to work. They didn't want to pay twice -- once for FICA contributions, and again in their own community. And the FICA contributions were earmarked for just that use. Employers objecting to the ACA mandate are not concerned about paying twice. They want to be immune from even the appearance of support for these services, even in a context where they can openly condemn the services. The religious entity employers (who can refuse to hire those who use such services) don't even have to pay once. They just want to be entirely out of the causation loop between ACA policies and the provision of pregnancy prevention services. Many taxpayers would like to be out of the causation loop between paying taxes and financing causes they find deeply immoral -- the death penalty, some or all wars, etc. Of course, we can handle this on the compelling interest side (need for uniformity), but the question of attenuation and distance between the status (employer, taxpayer) and the conduct remains. The question does not disappear because the claimant says so. On Wed, Oct 3, 2012 at 10:35 AM, Christopher Lund l...@wayne.edu wrote: Can I ask a quick question for people like Marci, Marty, and others who doubt the existence of a substantial burden? What about United States v. Lee? The Amish object to paying Social Security taxes. The government makes them. The decision to use the taxes for Social Security is the government's, not the Amish. The Amish say, Well, we object to giving you money to pay for that. The Court says there's a burden. Isn't this case just Lee again? What am I missing? (If I've missed earlier posts discussing this, I'm sorry.) Best, Chris ___ 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chris, I respectfully disagree with the ipso facto view that a plaintiff is substantially burdened when ever compelled to do something their religion forbids. Burdened yes, substantially burdened maybe. This may sound cold, but it's business. I would suggest to people who oppose the mandate to move on but I know that isn't going to happen. I believe that current mandate found the correct accommodation in balancing the interests of employers and employees. Obviously, some disagree. Not said in this discussion so far is that in the name of religion much ill is done (including war and discrimination). In my view, broadening the accommodation would add to the list. (I would see granting the accommodation to O'Brien like granting a religious exemption to parents from seeking medical care for their sick children.) Bob Ritter On October 2, 2012 at 1:05 PM Christopher Lund l...@wayne.edu wrote: As for Chip and Bob Ritter’s point about the burden being “substantial,” I think that anytime a plaintiff is forced to do something their religion forbids, that is not just a burden but a substantial burden. I think the Court made this clear by implication in Hernandez. See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (“We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists' practices is a substantial one. Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically.”). This is not to say that the word “substantial” makes no difference. It may be important in other kinds of cases like, say, Braunfeld—cases where the government makes the religious practice more onerous but does not forbid it. (For another example, we could go back to my discussion with Marci about a prison that doesn’t force a Jew to eat non-Kosher food, but puts him on a Kosher diet that is significantly worse than that of other inmates.) I think Chip has rightly diagnosed the deep divide between the two groups. I think there are merits and demerits to both sides. But I think the Court has chosen the first position. Subject to the sincerity inquiry, churches do indeed get to “self-declare” what their religious views are. I know that sounds weird, but wouldn’t it be weirder if they didn’t? Certainly this broad conception of “burden” will lead to outcomes like Lee: As the scope of the religious objection grows wider and wider, the government’s claim of a compelling interest becomes more and more persuasive. Maybe the Court’s adoption of a broad sense of “burden” in cases like Lee helped lead to Employment Division v. Smith. Gosh knows, it was part of Boerne. See City of Boerne v. Flores, 521 U.S. 507, 535 (1997) (“It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals.”) But it seems to me that this is the path we’re on. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, October 02, 2012 11:10 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The formal findings in RFRA reference Sherbert and Yoder, but not Thomas. Significant? Should Thomas even apply to artificial persons, like holding companies, corporations, and religious non-profits? Shouldn't they be required to articulate with clarity and precision just how their religious exercise is burdened? I have not yet seen a reply to Bob Ritter's very good question about what work is being done by the word substantial in RFRA. It has to mean something. Does it refer to material burdens (e.g., one must pay a fine of $X if one insists on compliance with one's own religious conscience)? Or does it refer to the religious substantiality of the burden? The list appears to divide into two groups on this burden question. One one side, the claimant gets to self-declare, and that triggers the strict scrutiny of RFRA. That seems to wildly over-enforce religious freedom. Consider the religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, Title VII, etc. On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip On Tue, Oct 2, 2012 at 10:46 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Marty, obviously worthy questions. No answers, just some thoughts. 1. I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is burden, and if we interpret it broadly, then there's a risk of a taffy pull-every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that strong claims get treated much worse. I don't have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that-apart from prisons-the weakest claims aren't brought, or don't find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn't feel this way, but I do. And I bet judges do too. 2. (I agree about the difficulties of Gillette.) One thing: The claimant's say-so of a religious burden. A plaintiff's subjective views of a burden are irrelevant-that's Lyng and Bowen. But plaintiffs' subjective views of their own religion are controlling-that's Thomas, and Lee, and others. There's a difference there, and the gap creates a real check. Yes, plaintiffs can create a burden by willing to plead whatever religious beliefs necessary to get them there, but I'm not convinced they would do that. And I think sincerity is a legitimate attack there. 3. I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don't think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether they should be required to provide contraception to their employees, with (2) whether contraception should be provided at all (whether by other employers or the government). The first is a religious liberty claim, where I am sympathetic to the Church; the second is a public policy claim, where I am not. That the Church has sometimes mixed the two together opens the door to a doubt about sincerity: Maybe the Catholic Church just doesn't like contraception generally, and this is just another tactic to minimize its spread. But I think a plausible reading of the Church's position is that while they dislike contraception across-the-board, there are special problems with them being forced to provide it. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 11:17 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chris: You and Marc raise absolutely valid points about doctrine during the Sherbert/Yoder era: The argument I'm suggesting (I'm not advocating it yet -- merely thinking it through) is in at least some tension with the sheet-metal/turrets portion of Thomas, and perhaps the burden discussion in Lee (I can't recall offhand what the Amish theory was about why the Social Security taxes violated their religion, but I assume it was something akin to the cooperation with evil theory being floated here; although as Chip suggests, it also involved some aspect of double-payment). So, simply in terms of what the right answer is or ought to be under RFRA, the government will obviously have to contend with those cases, either by suggesting (as someone here did) that perhaps RFRA did not incorporate their burden analysis wholesale (I'm dubious, but haven't thought it through), or that this case is distinguishable. But I'm not simply asking what the right answer is under RFRA. I'm trying to address at least three other questions raised by these claims: 1. Was Burger right on the turrets/sheet-metal point? Should the courts actually treat all religious claims of substantial burden uncritically, without even asking whether and to what extent the claimant's own conduct calls into question whether the burden is in fact substantial from the claimant's own religious perspective? If the courts do not differentiate at all between the plausibility and strength of such claims, and treat all alleged substantial burdens alike, is that a good thing for religious liberty? After all, it means that if the government were to voluntarily give exemptions, or be compelled by the FEC/RFRA to do so, it would have to cover a much, much wider class of
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. 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: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and
HHS Rule: What is at Stake?
Thanks, Chris. As to your discussion regarding what might be truly bothering at least some critics of the HHS within the Church, over at Mirror of Justice Rick G. links to this new post by one of our esteemed Conference participants, Patrick Deenen, whose views on this certainly differ considerably from mine (and from many of his co-panelists'): http://www.firstthings.com/onthesquare/2012/10/president-obamarsquos-campaign-for-leviathan. To Patrick's credit, at our conference he acknowledged during his panel's discussion (hope I'm characterizing this fairly--I need to review the video myself!) that the issue from the Church's perspective is not so much (or at least not principally) impermissible forced cooperation with evil, but something much more fundamental about the role of the state. His new essay gives a flavor of what he sees as one of the real concerns for at least certain of the objectors to the HHS Rule. Patrick writes that with the observation during the Democratic National Convention that 'government is the only thing we all belong to', and the actual underlying theme [of the Convention] that the State is needed to ensure our individuated liberty, the Obama administration thus implicitly and effectively endorsed the Hobbesian liberal ontology that there ought exist only individuals and the state—all other competitors are to be regarded as oppressors, and require an expansive and empowered government for individual liberation. Now, I happen to think that this leap is, to put it politely, not intuitively obvious and more than a bit hyberbolic. Does anyone seriously think that statements or themes at a convention that the government is the only thing we all belong to and the state is needed to ensure our individuated liberty reveal that the Obama Administration endorses elimination of all other social institutions (there ought to exist only individuals and the state), every one of which is to be regarded as oppressors? But more to the point, Patrick argues that the HHS rule is a prime example of the Leviathan state dangerously intruding into the internal operations of voluntary, constitutive social organizations to which persons once owed their primary allegiance --- including the family, the Church, and private guilds. The problem (well, one problem) with this argument is that the HHS rule will not apply to virtually any organization of the type that Patrick describes -- in particular, to any nonprofit organization that qualifies for and exercises the title VII exemption allowing preferences for co-religionists. In *those *organizations, the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious norms. For that reason, HHS does not apply its Rule to those organizations. (I'm putting to one side here the fact that there may be -- though I doubt it -- a few organizations that hire only from within the Church but that would not qualify for either of the HHS exemptions. Because that's a hypothetical situation unlikely to be encountered, I think it fair to reserve it here.) The employees being protected by HHS here are *not *those who have voluntarily joined such an organization constituitive of a cohesive community challenging the orthodoxies of the state. Instead, they are, for the most part, non-Catholic employees who have been hired by Catholic employers to process refractory and ceramic materials (*O'Brien*), or to serve soup, or to sort the mail, or to take dictation, or to keep the accounting books, etc. These employees do not promise, and are not expected, to follow Catholic precepts in their private lives. And, perhaps more to the point, well before the HHS Rule, the dreaded Leviathan state had already imposed *countless *regulations on the employer for the purpose of protecting those employees (wage and hour regs, antidiscrimnation norms, OSHA, etc., etc.) -- regulations that are not typically applied to the sorts of theoretical pre-state organizations to which Patrick refers. Perhaps most importantly for purposes of this list, if this is really what's driving the objection to the HHS Rule, then, *whatever* one thinks of its merits, is it really the sort of objection that the state should accommodate in the name of religious liberty? On Wed, Oct 3, 2012 at 12:41 PM, Christopher Lund l...@wayne.edu wrote: Marty, obviously worthy questions. No answers, just some thoughts. ** ** **1. **I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is “burden,” and if we interpret it broadly, then there’s a risk of a taffy pull—every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that “strong” claims get treated much worse.
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek 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: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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: Marty Lederman To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock wrote:
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it's merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I'm not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can't use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. 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: Marty Lederman To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock wrote:
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
It cannot be the answer that the coverage is mandated. Whether the coverage can be mandated is the question. The employer signs a contract, and pays for a contract, that covers these services. But for the regulation, he could sign and pay for a very similar contract that does not cover these services. Re saving money: I’m going to tweak the facts to isolate the issue of cost saving. I’m going to make the religious objection one that everyone would share. I understand that these hypothetical facts are extreme. The point is only to separate the issue of saving money from all the other issues. Suppose the church runs an orphanage with 1000 children. It invites bids on a contract to feed the children for a year. It specifies the quantity and quality of food. It gets two bids. The first bid is $1.5 million. The second bid is $1.3 million. The second bidder specifies that after the contract is awarded, it will take the 100 oldest children, drive them to the nearest big city, and dump them on the street. There will be no need to feed them anymore. The church should not worry that it is paying for this immoral act, because it isn’t paying – it is actually paying less instead of more. But of course the church would think itself morally responsible if it signed that contract. From the church’s perspective, if contraception saves money, it will do so by preventing children from being born. Most of us think that contraception is good thing. But if you think it an evil thing, the fact that it saves money does not make it morally acceptable to contract for it, or to pay for a package that includes it. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Wednesday, October 03, 2012 1:23 PM To: Douglas Laycock Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, thank you for responding but I still don't comprehend your point. (By the way, you slipped the money back into the argument.) Since the coverage is mandated and operative clauses are likely boilerplate (thus no or virtually no arranging and contracting: for the contraceptive, etc. coverage) and under the scenario I presented that the employer is charged nothing additional, I suspect that what is left is merely that an employer maybe upset that his or her employees have an opportunity to participated in the mandated services. Much to attenuated for me to call the mandate a substantial burden on the employer's free exercise of religion. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: HHS Rule: What is at Stake?
Marty, If the Catholic Church's view is really the same as Patrick Deenen's-if the Catholic Church's real objection is that HHS moves us to a Leviathan-like state and they have religious objections to that-then I agree its First Amendment claim fails. Then this really does become a case like Lyng or Bowen. The Catholic Church can object if they are coerced by the government in doing things against their religious will, but they have no First Amendment claim to control the government's behavior. A problem is going to be that there are a lot of people in the Catholic Church. Some will have a religious objection specifically to the government-imposed role for the Catholic Church, some will just have a religious objection to the whole act (maybe like Patrick Deenen), and some will have no religious objection at all. I guess everything depends on who the plaintiff is. And in the case of an organizational plaintiff, it depends on the people vested with authority for the organization. You seem to equate (1) religious organizations where the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious norms and (2) religious organizations that qualif[y] for and exercis[e] the title VII exemption allowing preferences for co-religionists. I think I agree that (1) makes sense in deciding on the breadth of any religious exception. My question is why (1) and (2) are the same. Why can't there be organizations that have an important religious mission, but don't hire exclusively in the faith? I think a lot of religious social-justice organizations work that way. And church schools. This was a big deal in Hosanna-Tabor. The fact that the church school hired non-Lutherans was evidence to the Sixth Circuit that the church school wasn't serious about its religious mission. That seems to me (and it seemed to the Court) to be a mistake. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 2:28 PM To: Law Religion issues for Law Academics Subject: HHS Rule: What is at Stake? Thanks, Chris. As to your discussion regarding what might be truly bothering at least some critics of the HHS within the Church, over at Mirror of Justice Rick G. links to this new post by one of our esteemed Conference participants, Patrick Deenen, whose views on this certainly differ considerably from mine (and from many of his co-panelists'): http://www.firstthings.com/onthesquare/2012/10/president-obamarsquos-campa ign-for-leviathan. To Patrick's credit, at our conference he acknowledged during his panel's discussion (hope I'm characterizing this fairly--I need to review the video myself!) that the issue from the Church's perspective is not so much (or at least not principally) impermissible forced cooperation with evil, but something much more fundamental about the role of the state. His new essay gives a flavor of what he sees as one of the real concerns for at least certain of the objectors to the HHS Rule. Patrick writes that with the observation during the Democratic National Convention that 'government is the only thing we all belong to', and the actual underlying theme [of the Convention] that the State is needed to ensure our individuated liberty, the Obama administration thus implicitly and effectively endorsed the Hobbesian liberal ontology that there ought exist only individuals and the state-all other competitors are to be regarded as oppressors, and require an expansive and empowered government for individual liberation. Now, I happen to think that this leap is, to put it politely, not intuitively obvious and more than a bit hyberbolic. Does anyone seriously think that statements or themes at a convention that the government is the only thing we all belong to and the state is needed to ensure our individuated liberty reveal that the Obama Administration endorses elimination of all other social institutions (there ought to exist only individuals and the state), every one of which is to be regarded as oppressors? But more to the point, Patrick argues that the HHS rule is a prime example of the Leviathan state dangerously intruding into the internal operations of voluntary, constitutive social organizations to which persons once owed their primary allegiance --- including the family, the Church, and private guilds. The problem (well, one problem) with this argument is that the HHS rule will not apply to virtually any organization of the type that Patrick describes -- in particular, to any nonprofit organization that qualifies for and exercises the title VII exemption allowing preferences for co-religionists. In those organizations, the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question *not * of whether your *volitional choice* was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral *even though you were well-intentioned*. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that *certain *action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the *choice* to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation of the norm against formal cooperation with evil. City B, however, has decided to treat cab drivers as common carriers -- they must accept all fares, no matter the destination. Our same cab driver, thinking that prostitution is unlawful, but now working in City B, abides by the law, picks up all fares without discrimination . . . and occasionally finds himself being asked to drop the passenger at a so-called house of ill-repute, a request that (like all others) he honors. In this case, he has performed exactly the same act as he did in City A, but this time, he has not violated religious tenets. Seems to be that in most material respects, the HHS Rule is more like my taxi driver in City B -- or the taxpayer in any jurisdiction -- than like your hypo of a Church that would gladly leave kids on the street in order to save a few bucks. On Wed, Oct 3, 2012 at 3:04 PM, Douglas Laycock dlayc...@virginia.eduwrote: It cannot be the answer that the coverage is mandated. Whether the coverage can be mandated is the question. The employer signs a contract, and pays for a contract, that covers these services. But for the regulation, he could sign and pay for a very similar contract that does not cover these services. ** ** Re saving money: I’m going to tweak the facts to isolate the issue of cost saving. I’m going to make the religious objection one that everyone would share. I understand that these hypothetical facts are extreme. The point is only to separate the issue of saving money from all the other issues.** ** ** ** Suppose the church runs an orphanage with 1000 children. It invites bids on a contract to feed the children for a year. It specifies the quantity and quality of food. It gets two bids. ** ** The first bid is $1.5 million. The second bid is $1.3 million. The second bidder specifies that after the contract is awarded, it will take the 100 oldest children, drive them to the nearest big city, and dump them on the street. There will be no need to feed them anymore. The church should not worry that it is paying for this immoral act, because it isn’t paying – it is actually paying less instead of more. But of course the church would think itself morally responsible if it signed that contract. ** ** From the church’s perspective, if contraception saves money, it will do so by preventing children from being born. Most of us think that contraception is good thing. But if you think it an evil thing, the fact that it saves money does not make it morally acceptable to contract for it, or to pay for a package that includes it. ** ** ** ** ** ** ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* b...@jmcenter.org [mailto:b...@jmcenter.org] *Sent:* Wednesday, October 03,
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
A couple of quick thoughts regarding your points, Chris. 1. If we are talking about existing laws such as RFRA or other laws that require strict scrutiny review, there may be a dilution problem (although like you I have seen strict scrutiny diluted in state RFRA cases and in RLUIPA cases without any evidence that this has crossed over to other areas of law.) Also, because courts often do not really apply strict scrutiny in RFRA and RLUIPA cases, notwithstanding the clear language of the statutes, the insistence that courts rigorously enforce a substantial burden threshold seems harder to justify. In any case, from a more abstract perspective, we can re-think both the standard of review and the substantial burden threshold. That's at least the focus of my posts. 2. When you talk about plaintiff's creating a burden that sounds like religious beliefs have clear parameters governed by logical rules. I'm certainly not a theologian, but for a lot of individuals, religious beliefs and duties are relational and they are evolving in the sense that individuals don't always think about what their religion requires in hypothetical situations. Relational beliefs and duties are rarely logical. (Certainly, my relationships with people who are important to me aren't logical.) As for evolving understandings, it seems just as plausible to say that a religious individual confronted with a new question or situation realizes that a government mandate burdens his or her faith than it is to say that they create a burden to get their claim adjudicated on the merits. Outside of the prison context, I have seen very few free exercise or RFRA claims where plaintiffs are asserting sham beliefs to benefit unfairly from religious liberty legislation. (List members can correct me if I'm wrong about this.) 3.I can't summarize the position of the Catholic Church on contraceptive mandate laws at the national level or in other states. But in California, when the Women's Contraceptive Equity Act (the state forerunner of the HHS regulations) was debated in the legislature, the Catholic Conference took a neutral position on the law but strongly insisted on a religious exemption for Catholic Charities and other Catholic non-profits (which it did not receive.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, October 03, 2012 9:41 AM To: 'Law Religion issues for Law Academics' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marty, obviously worthy questions. No answers, just some thoughts. 1. I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is burden, and if we interpret it broadly, then there's a risk of a taffy pull-every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that strong claims get treated much worse. I don't have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that-apart from prisons-the weakest claims aren't brought, or don't find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn't feel this way, but I do. And I bet judges do too. 2. (I agree about the difficulties of Gillette.) One thing: The claimant's say-so of a religious burden. A plaintiff's subjective views of a burden are irrelevant-that's Lyng and Bowen. But plaintiffs' subjective views of their own religion are controlling-that's Thomas, and Lee, and others. There's a difference there, and the gap creates a real check. Yes, plaintiffs can create a burden by willing to plead whatever religious beliefs necessary to get them there, but I'm not convinced they would do that. And I think sincerity is a legitimate attack there. 3. I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don't think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether they should be required to provide contraception to their employees, with (2) whether contraception should be provided at
Re: HHS Rule: What is at Stake?
Sorry if I was unclear, Chris. I agree wholeheartedly that organizations that that don’t hire exclusively in the faith can have an important religious mission. And that mission might even include asking its employees -- of all faiths and no faith -- to act in certain ways while performing their jobs. But those organizations, unlike those who take advantage of the title VII exemption, do not typically assume that they can regulate what their employees do *outside* the workplace -- in particular, they cannot insist that their employees, particularly those of other faiths, comply with the employer's religious tenets. And so if the burden here is that it will be harder for the employer to establish an organization full of employees who abide by Catholic tenets w/r/t contraceptive use -- to establish the sort of constitutive community of which Deneen writes (if I'm understanding him correctly), then the HHS Rule is the least of it: Title VII and other laws already prevent the employer from insisting upon such religious uniformity among its employees. By contrast, if the employer is one that is legally entitled to insist upon such employee religious conformity outside the workplace, and exercises that right, then the HHS Rule will almost certainly not apply to that employer. On Wed, Oct 3, 2012 at 3:22 PM, Christopher Lund l...@wayne.edu wrote: Marty, ** ** If the Catholic Church’s view is really the same as Patrick Deenen’s—if the Catholic Church’s real objection is that HHS moves us to a Leviathan-like state and they have religious objections to that—then I agree its First Amendment claim fails. Then this really does become a case like *Lyng* or *Bowen*. The Catholic Church can object if they are coerced by the government in doing things against their religious will, but they have no First Amendment claim to control the government’s behavior. * *** ** ** A problem is going to be that there are a lot of people in the Catholic Church. Some will have a religious objection specifically to the government-imposed role for the Catholic Church, some will just have a religious objection to the whole act (maybe like Patrick Deenen), and some will have no religious objection at all. I guess everything depends on who the plaintiff is. And in the case of an organizational plaintiff, it depends on the people vested with authority for the organization. ** ** You seem to equate (1) religious organizations where “the employees know going in that they are committing to be part of a religious community, and that they might have to adjust their behaviors to reflect religious norms” and (2) religious organizations “that qualif[y] for and exercis[e] the title VII exemption allowing preferences for co-religionists.” I think I agree that (1) makes sense in deciding on the breadth of any religious exception. My question is why (1) and (2) are the same. Why can’t there be organizations that have an important religious mission, but don’t hire exclusively in the faith? I think a lot of religious social-justice organizations work that way. And church schools. This was a big deal in *Hosanna-Tabor*. The fact that the church school hired non-Lutherans was evidence to the Sixth Circuit that the church school wasn’t serious about its religious mission. That seems to me (and it seemed to the Court) to be a mistake. ** ** Best, Chris ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 2:28 PM *To:* Law Religion issues for Law Academics *Subject:* HHS Rule: What is at Stake? ** ** Thanks, Chris. As to your discussion regarding what might be truly bothering at least some critics of the HHS within the Church, over at Mirror of Justice Rick G. links to this new post by one of our esteemed Conference participants, Patrick Deenen, whose views on this certainly differ considerably from mine (and from many of his co-panelists'): http://www.firstthings.com/onthesquare/2012/10/president-obamarsquos-campaign-for-leviathan. To Patrick's credit, at our conference he acknowledged during his panel's discussion (hope I'm characterizing this fairly--I need to review the video myself!) that the issue from the Church's perspective is not so much (or at least not principally) impermissible forced cooperation with evil, but something much more fundamental about the role of the state. His new essay gives a flavor of what he sees as one of the real concerns for at least certain of the objectors to the HHS Rule. Patrick writes that with the observation during the Democratic National Convention that 'government is the only thing we all belong to', and the actual underlying theme [of the Convention] that the State is needed to ensure our individuated liberty, the Obama administration thus implicitly and effectively endorsed the Hobbesian
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 3:26 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have chosen to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question not of whether your volitional choice was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral even though you were well-intentioned. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that certain action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the choice to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation of the norm against formal cooperation with evil. City B, however, has decided to treat cab drivers as common carriers -- they must accept all fares, no matter the destination. Our same cab driver, thinking that prostitution is unlawful, but now working in City B, abides by the law, picks up all fares without discrimination . . . and occasionally finds himself being asked to drop the passenger at a so-called house of ill-repute, a request that (like all others) he honors. In this case, he has performed exactly the same act as he did in City A, but this time, he has not violated religious tenets. Seems to be that in most material respects, the HHS Rule is more like my taxi driver in City B -- or the taxpayer in any jurisdiction -- than like your hypo of a Church that would gladly leave kids on the street in order to save a few bucks. On Wed, Oct 3, 2012 at 3:04 PM, Douglas Laycock dlayc...@virginia.edu wrote: It cannot be the answer that the coverage is mandated. Whether the coverage can be
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.eduwrote: Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. ** ** Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. ** ** Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. ** ** The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 3:26 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question * not* of whether your *volitional choice* was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral *even though you were well-intentioned*. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that *certain *action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the *choice*to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation of the
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I did not mean to say that the bishops are saying that no Catholic employer can comply. I don't know what they are saying about that. Quite possibly nothing. But they are saying loud and clear that the Catholic institutions for which they are responsible cannot comply, and they are saying that in the face of government coercion. They are obviously saying that government coercion does not justify them in complying. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 4:57 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 3:26 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have chosen to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question not of whether your volitional choice was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral even though you were well-intentioned. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that certain action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Loud -- I agree. Clear? Not so much. Have they said that such institutions cannot comply? Indeed, I'm not even sure they've instructed such institutions that they must make the alternative payment to the government if they are not exempted. Again, I genuinely don't know -- perhaps the Bishops have said just that, in which case it would be very useful to be referred to whatever they've said. On Wed, Oct 3, 2012 at 4:59 PM, Douglas Laycock dlayc...@virginia.eduwrote: I did not mean to say that the bishops are saying that no Catholic employer can comply. I don’t know what they are saying about that. Quite possibly nothing. But they are saying loud and clear that the Catholic institutions for which they are responsible cannot comply, and they are saying that in the face of government coercion. They are obviously saying that government coercion does not justify them in complying. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 4:57 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 3:26 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
To follow up on Doug's point, in some cases whether a religious person is relieved of an obligation because of duress might depend on the kind and magnitude of the duress. Obligations may be excused if compliance places the individual's life at risk, for example. Under Marty's analysis, would this mean that the greater the punishment imposed by the state in requiring someone to violate their religious obligations, the less likely it will be that this requirement constitutes a substantial burden on religion? The greater the duress - the less choice the religious individual has to refuse to comply - therefore the weaker the claim to a substantial burden on religion. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, October 03, 2012 1:46 PM To: 'Law Religion issues for Law Academics' Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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
I really don't understand Mark's argument here: If one accepts a (strong version of) Romans 13:1 re the legitimacy of magistrates and therefore feels impelled to obey them (as Scalia has suggested he does), then why is it a burden at all, since by definition what the magistrate (appointed by God, even if one can't quite undersatnd why) is a legitimate authority. We're not talking about authoritarian personalities with a psychological predisposition to follow authority, but, rather religions that have strong belief in obeying the authorities (presumably because of a theology that derives from Romans 13:1.) It's tricker if we're talking about a belief that one should obey rather than avoid civil strife. But isn't avoiding civil strife generally desirable. Of course, the argument is that there shouldn't be such strife because the rest of us should tolerate the disobedience. But doesn't that depend on the specifics of what is being disobeyed? sandy From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, October 03, 2012 4:44 PM To: Law Religion issues for Law Academics Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden A “following orders” defense disadvantages religions that have strong belief in obeying the authorities, or that balance the need to avoid civil strife against the need to follow religious precepts. I don’t think the successful coercion of religious people should cut against their right to free exercise. Coercion is not freedom. If you send your kids to a public school that has Bible readings and prayers, because you can’t afford private school, and because there are mandatory education laws, does the successful coercion eliminate the invasion of religious freedom? If your kids tell your kids to go ahead and recite the pledge because otherwise they will be punished, do you and they forfeit your First Amendment claim? (Of course, any other approach is circular; if you are willing to suffer the consequences, then you don’t have to suffer the consequences, because (or assuming) your religious freedom claim succeeds.) Do people have to be willing to go to jail or to pay large fines in order to have religious freedom claims? We may test sincerity, but we don’t require heroism. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, October 03, 2012 1:46 PM To: 'Law Religion issues for Law Academics' Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 3:26 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have chosen to save the $200,000 by having the kids
