I think Steve is right that in the there is a difference between challenging the legitimacy or religiosity of plaintiffs beliefs and holding that as a legal matter at some point we will draw the line on extending the protection provided to beliefs that are grounded in complicity with other people's conduct. Ginsburg makes this point explicitly in her dissent. Alito pretty much ignores it. Suppose plaintiff argued that according to their religious beliefs about complicity they could not contribute to an insurance plan that covered treatments provided by hospitals or clinics that also provided abortion services. The only providers covered by a plan they could conscientiously support would be those who personally and institutionally refused to provide abortion services. That is more attenuated than Hobby Lobby's claim, but it is grounded on the same foundation of complicity.
The question to me is whether the correct place to take this attenuation into account is in the determination of substantial burden or whether it should be considered in evaluating the government's compelling state interest and whether there are less restrictive means available to further the state's goals. The downside of focusing on attenuation in deciding whether there is a substantial burden is that courts may be more influenced by their doubts as to the legitimacy or religiosity of belief when they are asked to evaluate the substantiality of the burden and using substantiality of the burden to control attenuation may result in some cases where the government wins even though it's interest is very low and should not be considered weighty enough to justify even an attenuated burden on religious exercise. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, July 01, 2014 9:32 AM To: Law Religion & Law List Subject: Re: Hobby Lobby Question No. I do not reject the legitimacy nor the religiousity of the plaintiff's beliefs. Quite the contrary; I accept them and undertstand them. But I do not accept that we should accept a complicity with evil claim when it becomes too attenuated as it is here. The inquiry is attenuation, not substantive on the sinfulness nor evilness nor "legitimacy" of the beliefs. Here, the attenuation wanders through several steps: 1. corporate structure (this alone would not be enough attenuation in my judgment) 2. insurance coverage is outside of their control - it is mandated by the state 3. the actual payments for the abortificants (howsoever erroneously or correctly defined is irrellevant) comes from a third party - the insurers and so this attenuates the action by the owners one step more (compare Rosenberger and voucher cases treatment of directness) 4. the decision to get the abortificants is by the employee. Note that if the employer did not provide any insurance, it would still be complicit with evil by paying any wages at all to women employees some of whom may use an IUD or get a morning-after pill or other offending treatment. Yet surely no one would claim that that would allow the employer to not pay wages or to reduce wages by the cost of obtaining such devices, would they? This is the danger of this case - where does one draw the line on the complicity with evil theory? Can Quakers now stop paying that portion of taxes that goes to support war? That is at least as directly complicit as in this case. So I would use attenuation - we use this sort of idea in proximate cause and in other settings for legal responsibility and can do so here. Imperfectly? Surely. But the law never achieves perfection. Steve On Jul 1, 2014, at 2:04 AM, Arthur Spitzer <artspit...@gmail.com<mailto:artspit...@gmail.com>> wrote: I appreciate Steve's response, which I think demonstrates that he is precisely rejecting the legitimacy (or perhaps the religiosity) of the plaintiffs' beliefs. The plaintiffs say that their religious beliefs prohibit complicity with evil, and that signing a contract that makes available certain chemicals or devices to others amounts to complicity with evil, because of the use to which such chemicals or devices are most likely to be put (terminating what plaintiffs believe is a human life). If a court should not accept that assertion "without inquiry," then what inquiry is it supposed to make? Can a court evaluate and reject the religious belief that "complicity with evil is sinful"? Can a court evaluate and reject the religious belief that "terminating a human life is evil"? Can a court evaluate and reject the religious belief that "morning-after pills terminate a human life"? Can a court evaluate and reject the religious belief that "providing the means for a person to obtain a chemical or device whose principal purpose is to terminate a human life, and that is likely to be used for that purpose, counts as complicity in terminating a human life"? Is there some other inquiry the court should be making that I'm missing? Art Spitzer PS - My questions should not be taken to imply that I necessarily agree with the majority opinion (not that anyone cares), and they certainly do not represent the views of my employer.
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