These are fascinating questions. Indeed, it may be that if the law prevents the exercise of conscience, then - at least with respect to certain claims concerning complicity with evil - there is no violation of conscience after all. Would conscience would demand civil disobedience and, if not, as Eugene suggests, is there nonetheless an injury (to conscience?) that we should recognize as a serious loss?
Speaking specifically on the question of Catholic opposition to the contraception mandate, Thomas Joseph White and R.R. Reno wrote on this issue in the November 2012 issue of First Things, in an article that included the following observations (note the "when possible" and "available steps" caveats): "one principle is clear: We should always seek to withdraw support and reduce material cooperation when possible. The failure to do so sends a message. It suggests that our material cooperation flows from assent, all the more so when we do not take the available steps to disentangle ourselves." Thomas Joseph White and R. R. Reno, A Mandate to Disobey, http://www.firstthings.com/article/2012/09/a-mandate-to-disobey Dan Conkle Maurer School of Law Indiana University Bloomington From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 27, 2013 12:57 AM To: Law & Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The ability to practice one's religion Let me ask a different question about the contraceptive mandate, and one that I should stress is not relevant under RFRA; it's more a question of how exemptions should be crafted. I often here variants of the following argument for Hobby Lobby and similar companies: People shouldn't have to abandon their ability to follow their religions as a price of going into business. And I sympathize with that argument at a general level. I also think that, if an employer sincerely believes that it's wrong to even buy policies that coverage, say, abortifacents, then requiring the employer to do so imposes a substantial burden. And this is so even if the employer doesn't believe that it's wrong to pay taxes that pay for abortions (as taxes do in some states, and I suspect in some measure at the federal level, too). As Thomas v. Review Bd. made clear, religious observers necessarily draw lines about when participation in something becomes sinful complicity, and courts can't second-guess such sincere lines. At the same time, the fact is that the law does require Americans to pay taxes. People who really oppose abortion already have to somehow reconcile themselves to living in a country in which taxes sometimes go to pay for abortions. They have to somehow reconcile themselves to the possibility that the salaries they pay their employees sometimes go to pay for abortions. Indeed, I suspect that the lines that many opponents of abortion do draw are influenced by the places that they are told (by the law or by society) they cannot draw the line. There aren't a lot of people who draw the line in a place which bans them from paying their taxes when those taxes can be used to help fund abortion; but maybe that's precisely because they know that, if they draw the line there, they'll go to jail. I wonder whether, if employers were told that buying insurance policies for employees will be treated by the law the same as paying taxes - a government-imposed requirement to pay money - then nearly all employers would come around to drawing the line at a different place (e.g., at a place where they think it sinful to, for instance, perform abortions or allow abortions on their physical property, but not to buy insurance policies that cover abortifacents). Should that matter to us? Should we think that, just as not that much has been lost in forcing everyone (not just businesspeople but everyone) to pay taxes that go to things that they may see are sinful, not that much would be lost in imposing similar obligations to pay employee benefits that cover things that the employers may see are sinful? Or should we think that a great deal has indeed been lost - though necessarily so - in denying exemptions to religious tax objectors, and that still more will be lots (and without as much pressing necessity) in denying exemptions to religious insurance payment objectors? Eugene
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