I agree with Greg's last paragraph. A legal system that relies only on legality is doomed.
sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sisk, Gregory C. Sent: Monday, February 17, 2014 7:25 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Notre Dame-- where's the complicit "participation"? Sincerity The question is not about access to health care or to contraception. No one proposes to ban contraception or withdraw it from the market. Access to contraception for those who cannot afford it is already widely available through both government and private efforts. Government subsidizes contraception in this country to the tune of $2.37 billion each year (yes, that's "billion" with a "b"). Chip Lupu offers us the amicus brief of the Guttmacher Institute in making make the medical case for the benefits of the mandate. Others have suggested that the primary motivation behind the contraception mandate within the Obama Administration was not a medical need that was not otherwise being addressed, but an ideological agenda. See Karen Jordan, The Contraceptive Mandate: Compelling Interest or Ideology? at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366466. My reading of the materials suggests the latter is the more accurate description. But I suspect that this is a matter on which people on this list will leave by the same door through which they entered. I want to encourage us to look beyond this particular episode and beyond the Supreme Court's resolution of the case at hand to the broader implications for our polity. Based on the reactions to my prior post, I may have as much difficulty as anyone in transcending ideological blinders. If so I apologize for my clumsy expression but would offer my own error in that respect as an object lesson for more self-critical evaluation by all of us. The broader issue I raised - in which I used diverse examples designed to prick the sensibilities of both sides of the political spectrum (with some success I gather) - is the increasing tendency of political winners to then wield the powers of government to impose that view directly on others, even to the point of conscripting others to serve that agenda. It no longer is enough to get government to do something for us that we want (or stop government from preventing us from doing something that we want to do). Now, when we win political power, we want government to use its powers of regulation and benefits and taxes to bring everyone else into line, grudging or not. I think the health of our society is being undermined by this absolutist approach to political debates and to governance. Now Sandy Levinson rightly asks whether this debate advances the ball on the constitutionality of the mandate before the Supreme Court. Probably not. But then I'm not contending that it does. I'm suggesting that avoiding constitutional crises is a value in itself. Looking for a new approach to politics that doesn't unnecessarily elevate winners and denigrate losers may be more important to the future health of our constitutional republic. Gregory Sisk Laghi Distinguished Chair in Law University of St. Thomas School of Law (Minnesota) MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2005 651-962-4923 gcs...@stthomas.edu<mailto:gcs...@stthomas.edu> http://personal.stthomas.edu/GCSISK/sisk.html<http://personal2.stthomas.edu/GCSISK/sisk.html> Publications: http://ssrn.com/author=44545
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