Jim has captured the point accurately and clearly. The list posts again are coming so fast that any post that takes time to write will fail to take into account other recent posts. With that caveat, and continuing the discussion under the new subject line:
My thanks to Marty for his clarification that he was referring to a Balkinization blog post, rather than just telling me to reread his religionlaw list post. Sorry for reacting strongly without first seeking clarification. It may be hard for someone outside the evangelical religious community (of which Wheaton College is an important institution) to understand the depth of feeling on the issue of abortion and the fears that govt will force people to choose between complicity in abortion and participation in society. There is a view that the govt (and the broader secular society) cannot be trusted, rooted in part on a view of the eschatological (end times) teachings in the Bible (as many interpret those teachings) and in part on the hard historical fact that religious liberty is not the norm. There has long been a strict view of complicity with respect to abortion. The Hyde amendment (barring use of federal funds for abortions other than those where the pregnancy results from rape or incest, or is necessary to protect the life of the mother) has been extremely important. That is not just because it reduces the number of abortions but because (1) it distances govt (in which we all participate to some degree) from what is considered an extreme evil, and (2) it eliminates complicity that would otherwise exist as our tax dollars are used to pay for that evil. I think we all agree that the law does not give people the right (under RFRA or the Free Exercise Clause) to opt out of paying taxes, even though the taxes are used for purposes that the taxpayer considers evil. Most of us agree that the law cannot do so if we are to have a working government. That is quite different from a view that there is no complicity. There are competing values. Some degree of social order and respect for authority is a basic requirement of civil society and indeed of free exercise of religion, including the spreading of the gospel. Cf. Hobbes. Many evangelicals consider the Pax Romana -- objectionable though Roman practices were (e.g., tossing of Christians to the lions) -- to have been essential to the spreading of the gospel, because Christians could travel freely and in relative safety. The Bible itself teaches respect for the government. (It even tells us to “honor the emperor.” 1 Peter 2:17). At some point we must “obey God rather than men” (Acts 5:29), but yet Jesus famously said, in the context of paying Roman taxes, “Give to Caesar what is Caesar’s.” At some point evangelicals would be required to engage in civil disobedience and perhaps even go underground. We are not yet at that point and for almost all evangelicals would not be, even if taxes were used to pay for abortions, as I think is true of some state tax funds. Small symbolic acts have loomed large. Christians died rather than burn a pinch of incense to the emperor. Filling out a form that instructs another person to arrange for abortions – under threat of expulsion from the economy – is squarely within the evangelical understanding of complicity in evil. Whether or not the form is such an instruction is part of the debate; the Supreme Court has twice recognized the concerns that Christians (Catholics and now evangelicals) have about the contents of the form. I haven’t read a lot of the blog posts on these matter, and will try to read more (particularly Marty’s various blog posts), but Tom Goldstein’s recent Scotusblog post seems right to me. http://www.scotusblog.com/2014/07/commentary-why-i-dont-think-the-courts-wheaton-college-decision-rests-on-any-misunderstanding-of-the-law/#more-214947. The using of the particular form isn’t necessary for accomplishment of the govt’s purposes, unless the govt has conditioned provision of the contraceptive/abortifacient goods and services on the use of the form. That is a problem of the govt’s own making; as Tom says, the govt can change the form or use a different process. That change is quite feasible – and it must be treated as feasible even if internal govt problems make it hard to accomplish – and it provides an easy less-restrictive means to accomplish the govt’s purposes. (An argument that a requirement of a simple statement of objection directed to HHS is prohibited by RFRA can’t, in my view, be acceptable, but the use of the form is a different matter.) I realize that Wheaton’s objection goes a bit beyond use of the form, and extends to a notification that goes directly to the plan administrator rather than to HHS. That’s a closer call as a matter of evangelical principles, in my book, but does seem within the evangelical understanding of complicity; why should I have to tell a private person that the govt is restricting my religious liberty, where the result will be that the private person must then take an action that I consider to be evil? In a sense I would be inviting that private person to sin, with resulting damage to that person. (Cf. 1 Corinthians 8, and Matthew 18:6.) The connection is closer than if I simply send a notice to the govt. Refusal to provide such a notice to an individual certainly does not invoke the specter of a Hobbesian war of all against all. Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: [email protected] [mailto:[email protected]] On Behalf Of James Oleske Sent: Saturday, July 05, 2014 10:28 AM To: Law & Religion issues for Law Academics Subject: Extent of Wheaton College's Objection Marty -- In your message below, and in your post over at Balkinization, you posit that Wheaton College "might still allege a RFRA violation" if "employees do get the coverage" under the Court's current solution of written notification to the government without using the challenged form and without the obligation that the College notify its insurance issuers and administrators. But in it's reply brief to the Court on Wednesday, Wheaton College represented its position as follows: "[E]ligible organizations should be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. That is precisely the relief Wheaton seeks .... Wheaton has no difficulty complying with—and indeed has already complied with—the terms prescribed by this Court in Little Sisters.... "Wheaton asks for the same relief that this Court granted to the Little Sisters of the Poor. Little Sisters, 134 S. Ct. 1022. There, the Court freed the Sisters from using the Form and allowed them to merely inform the government (not their TPA) of their religious objection. And after the Court issued its order -- which emphasizes (as you note in your Balkinization post) that "[n]othing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives" and that "[n]othing in this order precludes the Government from relying on [Wheaton's] notice [of its religious objection], to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act" -- Wheaton's counsel described the order as a "victory" that allows the college to "practice its faith free from crushing government fines." Of course, other non-profits might draw the line in a different place than Wheaton College and argue that written notification to the government is as problematic as written notification to insurance issuers or third party administrators. And perhaps some other nonprofits might (as I think your post suggests Wheaton College might) conditionally object to notifying the government depending on precisely how the government treats the written notification (e.g., as a definitive legal trigger designating a plan administrator or as an invocation of RFRA, which obligates the government to then find some solution, which perhaps could be viewed as less definitive of a trigger even if everyone knows what the result of the written notification will be). But given its representations to the Court, and its embrace of the Court's order, I think Wheaton College is unlikely to be the entity that presses that argument, no? - Jim On Sat, Jul 5, 2014 at 3:50 AM, Marty Lederman <[email protected]<mailto:[email protected]>> wrote: Yes, sorry -- did mean to refer to my B'Zation post, and certainly didn't mean to be snippy. Alas, as my post suggests, all will not be clear. That's the point: There's no doubt that the majority in WC thinks it has come up with an ingenious solution that will satisfy everyone. And perhaps it has, if its opinion is construed to suggest that RFRA empowers the government to direct Blue Cross to provide the coverage without WC designating BC as plan administrator, and if that suggestion is legally feasible. (Two huge "if"s.) But the dissenters, and most of the public, appear to be of the view that the Court's order will result in a denial of coverage to WC employees . . . and perhaps they're right. It may depend on technical ERISA questions. Moreover, as I suggest, if the employees do get the coverage, WC itself might still allege a RFRA violation, particularly if BC is designated a plan administrator. Chip may be right that at some level this mess is the inevitable result of RFRA, and of any exemption test that turns in part on an evaluation of the nature of the burden on religion. But I also think that it is a function of the increasingly implausible theories of complicity being offered by the plaintiffs' lawyers -- which the Court has invited with its capacious understanding of what constitutes a "religious question" beyond the ken of civil authorities to evaluate. On Sat, Jul 5, 2014 at 2:49 AM, Scarberry, Mark <[email protected]<mailto:[email protected]>> wrote: Perhaps I misunderstood Marty's brief response, to the effect that I should read his post. I took that to mean that all would be clear if I just bothered to read again the post to which I was responding. Perhaps instead he meant that I should read a post he made on the Balkinization blog; if so, then my apologies for taking offense and responding as I did. Mark Scarberry Sent from my Verizon Wireless 4G LTE Smartphone _______________________________________________ To post, send message to [email protected]<mailto:[email protected]> 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 [email protected]<mailto:[email protected]> 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 [email protected] 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.
