As for the first question, I think you're onto something: If the government set up a Title X clinic in a retirement home run by Little Sisters, despite the loud objections of Little Sisters, I doubt many people would think Little Sisters was complicit in the use of the birth control distributed there. Virtually everyone would, instead, understand that the government and the users of the contraceptives, not Little Sisters, were responsible. And I doubt that Catholic doctrine would conclude otherwise.
Even so, Paul Clement thought (probably correctly) that he would get a lot of mileage from the hypothetical because the Justices presumably would view such a commandeering of the retirement homes as deeply insensitive--outrageous, even, and objectionable on all sorts of grounds. That might be sufficient to establish a "substantial burden" of religious exercise even if it didn't make Little Sisters morally complicit. (I can't think of any analogous Free Exercise/RFRA/RLUIPA cases off hand.) As for your second question, there was laughter in the courtroom because the Chief Justice was so animated in his interjection. But trust me, not everyone present was laughing. See http://balkin.blogspot.com/2016/03/the-zubik-oral-argument-part-ii-is.html, and my brief and article cited therein. On Sat, Apr 9, 2016 at 4:49 PM, Case, Mary Anne <mac...@law.uchicago.edu> wrote: > I’ve had the following questions about the Zubik oral argument which I’m > hoping the list can help with, since the passage of time has not led me to > what I assume are obvious answers: > > > > 1) Why does everyone on the Court seem so blithely to agree with > Paul Clement that for the government to take over a room in the Little > Sisters’ facility to operate a Title X clinic, even if they paid market > price for the room, would of course be impermissible? Couldn’t such a > government action be seen as a taking for public use with just > compensation? Are RFRA and/or RLUIPA thought more generally to protect > religiously motivated property owners from what would otherwise be > permissible takings? If so, are there cases? And specifically with respect > to access to contraception, might it not sometimes be the less restrictive > alternative for a government, for example, to use eminent domain to take > over space in, for example, a Catholic health care facility, in which > medical goods and services which the facility objects to providing might be > made available? > > 2) When Roberts says, “Well, the way constitutional objections work > is you might have to change current law,” why is the response merely > “laughter” rather than the observation that a RFRA objection is not a > constitutional objection? > > > > > > > > > > > > > > > > > > > > > > > > _______________________________________________ > 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. >
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