Re: The nonprofit contraception services cases
This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, January 03, 2014 1:42 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not receive the services to which the employer objects? Something is missing from this narrative. Sent from my iPhone On Jan 3, 2014, at 10:56 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government's brief in Little Sisters: http://balkin.blogspot.com/2014/01/government-bref-in-little-sisters.html On Wed, Jan 1, 2014 at 5:34 PM, Marty Lederman lederman.ma...@gmail.com wrote: Another post, this one about the nonprofit cases that have now wound their way to the Court . . . http://balkin.blogspot.com/2014/01/not-quite-hobby-lobby-nonprofit-cases.html On Mon, Dec 16, 2013 at 1:53 PM, Marty Lederman lederman.ma...@gmail.com wrote: Since no one else
RE: The nonprofit contraception services cases
Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ___ 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
Re: The nonprofit contraception services cases
And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://mirrorofjustice.blogs.com/ Twitter: @RickGarnett https://twitter.com/RickGarnett *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3, 2014, at 12:43 PM, Marty Lederman lederman.ma...@gmail.com wrote: They will -- the government realizes that its plan is undermined and is reassessing Sent from my iPhone On Jan 3, 2014, at 12:08 PM, Ira Lupu icl...@law.gwu.edu wrote: Why don't all these religious nonprofits choose Christian Brothers Services as their health insurer? That way, certification or not, the employees will not
Re: The nonprofit contraception services cases
Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.comwrote: And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://mirrorofjustice.blogs.com/ Twitter: @RickGarnett https://twitter.com/RickGarnett *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marci Hamilton *Sent:* Friday, January 03, 2014 1:42 PM *To:* Law Religion issues for Law Academics *Cc:* Law Religion issues for Law Academics *Subject:* Re: The nonprofit contraception services cases Marty-- could you please elaborate on your response? I am not following this exchange Thanks-- Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 3,
Re: The nonprofit contraception services cases
Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page ___ 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
Re: The nonprofit contraception services cases
Is the ND rule students can't use it --or can't get it under student insurance --or can't get it from student health services? Or a combination? It would also be interesting what their policy was before and after the ACA was enacted. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:35 PM, Marty Lederman lederman.ma...@gmail.com wrote: Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.com wrote: And here's a post that (in part) responds to Kevin -- although my principal point is the Little Sisters case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress either to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . or to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Friday, January 03, 2014 1:42 PM To: Law Religion
Re: The nonprofit contraception services cases
One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you
Re: The nonprofit contraception services cases
This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN page Blogs: Prawfsblawg Mirror of Justice Twitter: @RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Monday, January 06, 2014 3:08 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: The nonprofit contraception services cases This is strictly an informational question-- is Notre Dame allowed to discriminate on the basis of religion in undergraduate admission? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because
Re: The nonprofit contraception services cases
Oops . . . turns out that Notre Dame does prohibit its students from engaging in sex outside of marriage: The University embraces the Catholic Church’s teaching that a genuine and complete expression of love through sex requires a commitment to a total living and sharing together of two persons in marriage. Consequently, students who engage in sexual union outside of marriage may be subject to referral to the University Conduct Process. http://studenthandbook.nd.edu/community-standards/standards/sexual-activity/ I apologize for assuming otherwise . . . On Mon, Jan 6, 2014 at 3:35 PM, Marty Lederman lederman.ma...@gmail.comwrote: Sorry, I should have added that if ND prohibited only women, and not men, from using contraception, that would violate the title IX prohibition on sex discrimination. But a rule that all students must not indulge in unmarried sex, or in unmarried sex with contraception, might be ok under current federal law. On Mon, Jan 6, 2014 at 3:29 PM, Marty Lederman lederman.ma...@gmail.comwrote: And here's a post that (in part) responds to Kevin -- although my principal point is the *Little Sisters* case is an unimportant sideshow, and that it won't matter much what the Court does on the emergency motion, in particular: http://balkin.blogspot.com/2014/01/little-sisters-state-of-play.html On Rick's new question, I'd need to think some more about it, but I assume that it would be permissible for Congress *either* to grant N.D. an exemption from title IX, thereby allowing N.D. to enroll only practicing Catholics . . . *or* to deny N.D. such an exemption. Moreover, as it stands now, and unless I'm forgetting something, I don't think anything in the law would prohibit N.D. from requiring enrolling women to certify that they will not use contraception. But N.D. of course does not do so. On Mon, Jan 6, 2014 at 2:46 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, I would recommend Prof. Kevin Walsh’s post (here: http://mirrorofjustice.blogs.com/mirrorofjustice/2014/01/what-does-the-form-that-the-government-insists-the-little-sisters-of-the-poor-must-sign-actually-do.html) on the issue with which Marty kicked off this thread a few days ago. Kevin’s post is called “What does the form that the government insists the Little Sisters of the Poor must sign actually do?” Of course, others have moved from the specific issues that Marty raised to more general (and always important) conversations about RFRA’s constitutionality and the moral desirability of Yoder, but I wanted to ask just a few things with respect to Greg Lipper’s report that Americans United for Separation of Church State has filed a motion seeking to intervene in the University of Notre Dame’s lawsuit challenging the mandate. (Although I am blessed to teach at Notre Dame, I have no role in the University’s lawsuit.) https://www.au.org/media/press-releases/americans-united-seeks-to-intervene-in-notre-dame-lawsuit-challenging-womens I understand (though I do not agree with) the claim that, because Notre Dame is a large employer in the area, its right to refuse to provide coverage for contraceptives (in cases where a physician has not indicated that the contraceptives are medically indicated) to employees who do not embrace the Catholic Church’s teachings on sexual morality and abortion is limited. That is, Notre Dame’s role and place in the market limits its right to say to employees “this is who we are, and if you want to work for us, you should expect that who we are will be relevant to the terms of our arrangement with you.” With respect to students, though, it is harder for me to see why Notre Dame should not be able to say to prospective students (as Notre Dame does), “This is who we are. If you come here – and you are welcome to, but you don’t have to – you should know that our character, mission, aspirations, and values will shape the terms of our arrangement with you.” Is it the view of AU, or of others, that the Establishment Clause (or anything else) prevents the government from exempting a Catholic (or other mission-oriented) educational institution from an otherwise general rule in order to allow the institution to say (something like) this to students and the broader world – again, assuming that students who get into Notre Dame (a) have plenty of options and (b) know full well that Notre Dame aspires to a meaningfully Catholic character? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice
RE: The nonprofit contraception services cases
It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides. Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires.So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.orgmailto:lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.commailto:hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School ___ 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.
Re: The nonprofit contraception services cases
Ok-- I am confused. Is Derek saying federal funds subsidiz Notre Dame's health care system? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Jan 6, 2014, at 8:45 PM, Gaubatz, Derek dgaub...@imb.org wrote: It seems to me that there is a much less nefarious explanation. In the context of those Establishment Clause challenges, it was permissible for a religious entity like Notre Dame to receive the government funds so long as they were not used for items deemed to be inherently religious activities such as worship or instruction. In saying that the provision of health insurance was a secular expense, Notre Dame was merely distinguishing such expenses from those that might be spent on things like theological instruction or wine for a mass. But to say that the provision of health insurance is a secular expense, unlike worship or instruction, says nothing about whether Notre Dame can and does apply its religious beliefs to what type of health insurance it provides.Moreover, it would also be an “administrative” or “secular” expense (as opposed to inherently religious) for Notre Dame to pay for the salary of someone running one of its government grant programs, but that doesn’t mean Notre Dame can’t apply its religious beliefs and criteria to selecting those that it hires.So I think it is fair to say that there can be secular expenses (as opposed to inherently religious) under Establishment Clause jurisprudence that still involve the exercise of religious beliefs by a religious entity. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton This reminds me of the religious organizations who tell their employees in writing that they do not discriminate but when they get sued for discrimination argue the ministerial exception. Religious employers appear to be no different from any other in seeking the most beneficial position at the expense of employees or others. The question is whether courts will hold them to their previous statements and positions. Marci A. Hamilton On Jan 6, 2014, at 4:21 PM, Greg Lipper lip...@au.org wrote: One further note, related to Marci’s question, and detailed in our intervention papers: Notre Dame has emphasized the secular nature of its benefits when in its legal interests to do so. In Laskowski v. Spellings, 546 F.3d 822 (7th Cir. 2008), an Establishment Clause challenge to public funding of a teacher-training program at Notre Dame, the university argued that the benefits that it provides, including health insurance, are “secular expenses.” See Br. of Def.-Intervenor-Appellee at 7-8, Laskowski, No. 05-2749 (7th Cir.), 2005 WL 3739459, at *8. And in American Jewish Congress v. Corporation for National Community Service, 323 F. Supp. 2d 44 (D.D.C. 2004), rev'd sub nom. Am. Jewish Cong. v. Corp. for Nat'l. Cmty. Serv., 399 F.3d 351 (D.C. Cir. 2005), another Establishment Clause challenge to Notre Dame’s receipt of public funds, the University argued that purchasing health insurance is “administrative” in nature and does not constitute “religious instruction or activity.” Mem. of Def.-Intervenor Univ. of Notre Dame, Am. Jewish Cong., 2003 WL 25709328,at Part A, § 3, para 10. So whatever else Notre Dame may or may not do to create a religious educational environment, presumably it can’t have it both ways – health insurance is either a secular expense or involves religious exercise, but it can’t be both at the same time. On Jan 6, 2014, at 3:44 PM, Marci Hamilton hamilto...@aol.com wrote: Doesn't it depend in some way on how much federal money it receives? Again, I am simply asking. Marci A. Hamilton Verkuil Chair in Public Law On Jan 6, 2014, at 3:15 PM, Rick Garnett rgarn...@nd.edu wrote: Notre Dame is allowed (I assume – again, I am just an employee and am not involved in admissions or with the University Counsel’s work) to take religion, and many other factors, into account when building its classes, sure. Does anyone believe that Notre Dame should *not* be able to conduct admissions so as to, for example, admit classes that are predominantly Catholic? Best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State Society Notre Dame Law School ___ 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
