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 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. 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 claimants, with an accordingly much > greater cost on the government interest side of the ledge . . . which as we > all know means that many fewer exemptions will be afforded, in which case > the claimant with the "strong" objection is harmed by being lumped in with > the claimants with idiosyncratic or more attenuated objections. (As we all > know, the courts have often avoided this problem by rejecting sincerity > claims -- something that rightly troubles many of us.) > > 2. Regardless of what a court should do under RFRA, should a legislature > or administrative agency be sympathetic to such claims, and voluntarily > accommodate all such claims merely upon a claimant's say so of religious > burden, knowing that to do so would expand the class of exempted persons > dramatically? (Cf. The decision of Congress/the Court to grant > conscientious exemption status only to those persons who have objections to > *all* wars, and not to those who object to participating in unjust > wars.) > > 3. Perhaps most importantly, but of course most sensitively, should > Catholic institutions be asserting such claims of impermissible cooperation > with evil when such claims appear -- not only to outside observers such as > I, but to virtually every serious Catholic thinker I've encountered -- to > be deeply inconsistent with the institutions' own conduct in analogous > cases and with common understandings of the moral doctrine? At the very > least, isn't there some value in asking such institutions to articulate why > this particular use of funds is immoral and other, seemingly analogous uses > are not, if only to encourage the institution to be more critical and > candid about how the HHS Rule actually affects Catholic institutions. > (Please note that I am *not* here suggesting that the Rule has no effect > on such institutions, or that they do not sincerely find it odious --to the > contrary. I am merely pressing upon the common and powerful claim that "it > puts us to the untenable choice of complying with the law or violating a > religious injunction.")**** > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
