I agree with Rick that Judge Posner did not comport himself well (or usefully) at oral argument. I also agree that Notre Dame has not said--not clearly, anyway--that it would object if the *government* provided its students and employees with coverage in a way that did not involve Notre Dame's insurer and third-party administrator.
Yet, like Davis and her Deputy Clerk, Notre Dame now *does *argue that its religious obligations are violated, no matter the scope of its own noninvolvement, if Notre Dame's insurer (for its employee plan) or TPA (for its student plan) themselves provide contraceptive coverage to its employees/students -- something that has been happening all this year. I would be very surprised if Rick agrees that Notre Dame has been violating its religious obligations throughout all of 2015 -- or even that Notre Dame's decision-makers are of that view. Yet that is the claim. In fairness, the new claim in Rowan County is one step further attenuated: Davis now (reportedly) will argue that her religion prohibits a County Deputy Clerk from issuing a license even though (unlike ND and its insurer/TPA) Davis presumably did not herself enter into a contract with the Deputy Clerks. On Tue, Sep 8, 2015 at 9:20 PM, Rick Garnett <rgarn...@nd.edu> wrote: > Eric, > > I was not there, but have I listened, and I don't think your > characterization is accurate. Notre Dame, my understanding and impression > are, has not said much about the government's determination to provide (or, > more precisely, to require the provision by others of) contraceptives to > Notre Dame's employees. > > Instead, the University insists it wants to avoid being involved with > (and, I understand, you and Marty disagree with the University about what > constitutes being meaningfully or culpably involved with) that provision. > I don't see any point in litigating here the "[]plausibility" of the > University's stated views on complicity but, again, it seems inaccurate to > suggest that the University is demanding that its employees not receive > (from someone) contraception or contraception-coverage. > > That said: I do agree that there were a number of things that were > "apparent" from Judge Posner's questions and writings. I'm not sure, > though, how well some of those things reflect on Judge Posner. > > Rick > > On Tue, Sep 8, 2015 at 7:25 PM, Eric J Segall <eseg...@gsu.edu> wrote: > >> Well said again Marty. >> >> >> >> I was present in the courtroom for the Notre Dame 7th Circuit appeal. It >> was apparent from Judge Posner’s questions that nothing short of a complete >> government abdication of providing contraception to Notre Dame’s employees >> would satisfy Notre Dame. >> >> >> >> Best, >> >> >> >> Eric >> >> >> >> *From:* conlawprof-boun...@lists.ucla.edu [mailto: >> conlawprof-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >> *Sent:* Tuesday, September 08, 2015 6:29 PM >> *To:* Volokh, Eugene; Dellinger, Walter; Douglas Laycock; Howard >> Wasserman; conlawp...@lists.ucla.edu; Law & Religion issues for Law >> Academics; Michael Dorf >> *Subject:* Davis doubles down >> >> >> >> Eugene reports, pursuant to a phone conversation with Davis's attorneys, >> that she will continue to press her RFRA claim, and insist that the >> licenses not be issued, because, even though her name is no longer on the >> licenses, the name of her *office *is! >> >> >> >> >> https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/09/08/kim-davis-released-from-jail-plus-more-on-her-requested-accommodation/ >> >> >> >> It's just like the contraception cases -- whenever the government >> accommodates even the most implausible theories of complicity by >> eliminating the aspects of the scheme that the plaintiff asserted made her >> morally complicit, the plaintiff then unveils a new (and even more >> attenuated) theory of responsibility that is said not to be left >> unaddressed by the accommodation. In this way, the plaintiffs effectively >> exploit the fact that the governments in question (admirably) do not choose >> to challenge the sincerity of the ever-evolving theories of complicity. >> >> >> >> On Mon, Sep 7, 2015 at 6:14 PM, Marty Lederman <lederman.ma...@gmail.com> >> wrote: >> >> I'm pressed for time, so this is only a preliminary take, but thought >> it'd be worth throwing it out there for reactions: >> >> >> >> >> http://balkin.blogspot.com/2015/09/further-strangeness-in-kim-davis-case.html >> >> >> >> _______________________________________________ >> To post, send message to conlawp...@lists.ucla.edu >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof >> >> 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.
