Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Yes iust left roselle pk Sent from my iPhone On Oct 4, 2012, at 11:26 AM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Marci: As this thread has demonstrated, I certainly have concerns about the nature of the cooperation with evil theory of substantial burden being asserted here. But the theory is anything but new. It is also not based on the notion that others' use of contraception would violate the employers' religious liberty--indeed, I think most of these employers likely assume that their employees will continue to use contraception regularly in any event, albeit at a greater cost to the employees. The claim here is that the employer's involvement in allegedly facilitating the employees' conduct implicates the employers themselves in wrongdoing. As I've explained, I think this theory raises serious, difficult questions. But it's hardly novel. It was the theory in Thomas (he wasn't the one using the tanks to shot enemy soldiers). It's the theory we discussed on this list back in 1999-2000, when confronted by cases of landlords who didn't want to rent to unmarrieds. It's the theory raised in the Posner and related cases about police protection of abortion facilities. And it's the theory underlying the current disputes about proprietors -- BBs, florists, photographers, caterers, etc. -- who wish to discriminate against gay couples. Indeed, what makes it interesting and important is precisely that, post-Thomas, so many different religious liberty claims take this form. On Thu, Oct 4, 2012 at 11:08 AM, hamilto...@aol.commailto:hamilto...@aol.com wrote: Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing personal religious requirements on others. It is a weaker claim than any yet brought against government regulations on free exercise grounds. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215tel:%28212%29%20790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.orgmailto:dgaub...@imb.org To: religionlaw religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 2:47 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Actually, Doug, you might want to reread Thomas. He worked in the roll foundry, which closed. So he then asked to work in any other department. All of those departments involved parts for weapons. He could not do that he said, But he said that he would have been willing to create materials that then later were built into weapons. In the opinion's words: He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. So it is not nearly the complicity-with-evil case others have said it is. Thomas was objecting to having to work directly on weapons parts, not doing something that might ultimately produce something he disagrees with. I think Thomas could have sent his money into a fungible stream... The HHS regs situation is different. The employer has no belief against paying for health care. What he objects to is sterilization and contraception. He says he can't give money so that someone else might use it to do something he disagrees with. Yet, any use of the fungible funds is made completely independently of the employer -- under patient-doctor confidentiality and by a woman. On her side is Griswold, Title VII on gender discrimination, and doctor-patient confidentiality. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu; hamilton02 hamilto...@aol.com Sent: Thu, Oct 4, 2012 12:09 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marci, you are arbitarily singling out different steps in a parallel sequence of events. Thomas was asked to help assemble tank turrets. Others would put the turrets into tanks. Still others, maybe, would use the tanks to kill people. Or maybe not. The bishops' view is that they are being asked to contract for and pay for policies that cover contraception and very early abortifacients. That is what they object to, whether or not anything happens thereafter. Other people will use those policies to pay for medical care. Maybe some of them will pay for contraception or emergency contraception. Or maybe not, although here the odds seem higher than with the tanks. But it doesn't matter. The objection is to contracting for and paying for the coverage. On Thu, 4 Oct 2012 11:44:49 -0400 (EDT) hamilto...@aol.com wrote: First, let me applaud Marty's memory. I am certain I could not tell you what was discussed on this list in 1999! I'm not sure I was even reading it then. In any event, this is not the Thomas case. In Thomas, the objection was based on the believer avoiding taking action that he would find in conflict with his faith. He could not, consistent with his faith, participate in the manufacture of materials used in arms. In this case, the alleged violation is in the financial support of a system in which others engage in acts that conflict with his religion. That is a step farther. That is what makes me most uncomfortable about this (along with the fact it singles out women's health). I understand that the argument is that the payment into the fund itself is a burden, but that cannot be a winning argument after Lee, or after Zelman or the 4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses, money is fungible, and the entity/person sending money into a stream no longer has power/say/responsibility for how the money is used by independent actors who pluck it from that stream. So we are back to the question whether there is a free exercise right for a for-profit company to deter employees from engaging in acts that conflict with the employer's religion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing personal religious requirements on others. It is a weaker claim than any yet brought against government regulations on free exercise grounds. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.org To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 2:47 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Marci: As this thread has demonstrated, I certainly have concerns about the nature of the cooperation with evil theory of substantial burden being asserted here. But the theory is anything but new. It is also not based on the notion that others' use of contraception would violate the employers' religious liberty--indeed, I think most of these employers likely assume that their employees will continue to use contraception regularly in any event, albeit at a greater cost to the employees. The claim here is that the employer's involvement in allegedly facilitating the employees' conduct implicates *the employers themselves* in wrongdoing. As I've explained, I think this theory raises serious, difficult questions. But it's hardly novel. It was the theory in *Thomas *(he wasn't the one using the tanks to shot enemy soldiers). It's the theory we discussed on this list back in 1999-2000, when confronted by cases of landlords who didn't want to rent to unmarrieds. It's the theory raised in the Posner and related cases about police protection of abortion facilities. And it's the theory underlying the current disputes about proprietors -- BBs, florists, photographers, caterers, etc. -- who wish to discriminate against gay couples. Indeed, what makes it interesting and important is precisely that, post-* Thomas*, so many different religious liberty claims take this form. On Thu, Oct 4, 2012 at 11:08 AM, hamilto...@aol.com wrote: Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing personal religious requirements on others. It is a weaker claim than any yet brought against government regulations on free exercise grounds. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.org To: religionlaw religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 2:47 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like *Yoder* to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
First, let me applaud Marty's memory. I am certain I could not tell you what was discussed on this list in 1999! I'm not sure I was even reading it then. In any event, this is not the Thomas case. In Thomas, the objection was based on the believer avoiding taking action that he would find in conflict with his faith. He could not, consistent with his faith, participate in the manufacture of materials used in arms. In this case, the alleged violation is in the financial support of a system in which others engage in acts that conflict with his religion. That is a step farther. That is what makes me most uncomfortable about this (along with the fact it singles out women's health). I understand that the argument is that the payment into the fund itself is a burden, but that cannot be a winning argument after Lee, or after Zelman or the 4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses, money is fungible, and the entity/person sending money into a stream no longer has power/say/responsibility for how the money is used by independent actors who pluck it from that stream. So we are back to the question whether there is a free exercise right for a for-profit company to deter employees from engaging in acts that conflict with the employer's religion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Thu, Oct 4, 2012 11:25 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marci: As this thread has demonstrated, I certainly have concerns about the nature of the cooperation with evil theory of substantial burden being asserted here. But the theory is anything but new. It is also not based on the notion that others' use of contraception would violate the employers' religious liberty--indeed, I think most of these employers likely assume that their employees will continue to use contraception regularly in any event, albeit at a greater cost to the employees. The claim here is that the employer's involvement in allegedly facilitating the employees' conduct implicates the employers themselves in wrongdoing. As I've explained, I think this theory raises serious, difficult questions. But it's hardly novel. It was the theory in Thomas (he wasn't the one using the tanks to shot enemy soldiers). It's the theory we discussed on this list back in 1999-2000, when confronted by cases of landlords who didn't want to rent to unmarrieds. It's the theory raised in the Posner and related cases about police protection of abortion facilities. And it's the theory underlying the current disputes about proprietors -- BBs, florists, photographers, caterers, etc. -- who wish to discriminate against gay couples. Indeed, what makes it interesting and important is precisely that, post-Thomas, so many different religious liberty claims take this form. On Thu, Oct 4, 2012 at 11:08 AM, hamilto...@aol.com wrote: Actually, this free exercise theory is new. It is the first time that a religious believer has made a free exercise claim because they don't want others (with different beliefs) to potentially violate the believer's religious rules for conduct. The company owner and family won't use the plan for women's health benefits involving contraception or sterilization, and are not required to. The owner will not even know if the plan ever covers these services because of the doctor-patient privilege. It is a potential event, over which the owner has no control or right to control and will have no knowledge, and the conduct is the employee's conduct, not the employer's. The purported violation is that a for-profit company, which is not permitted to discriminate on the basis of religion, must pay health insurance that includes coverage for independent acts obtained solely for health reasons that differ from the employer's religious beliefs. The approach taken in the HHS regs also is not new. States have routinely required insurance companies to include in their plans various services, e.g., Pap smears, and physicals, etc. That means that the employer buying a plan can only buy plans that include the mandatory coverage. The HHS regs follow this model of including the health protection that reduces health costs and increases health -- particularly for women, whose health issues historically have seemed to be easier to exclude than men's. So the approach taken in the regs is actually not a new approach to keeping health care costs down and achieving the greatest health for the largest number. What is new is this attempt to avoid cost and health-driven decisions about coverage by interposing
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Marci, you are arbitarily singling out different steps in a parallel sequence of events. Thomas was asked to help assemble tank turrets. Others would put the turrets into tanks. Still others, maybe, would use the tanks to kill people. Or maybe not. The bishops' view is that they are being asked to contract for and pay for policies that cover contraception and very early abortifacients. That is what they object to, whether or not anything happens thereafter. Other people will use those policies to pay for medical care. Maybe some of them will pay for contraception or emergency contraception. Or maybe not, although here the odds seem higher than with the tanks. But it doesn't matter. The objection is to contracting for and paying for the coverage. On Thu, 4 Oct 2012 11:44:49 -0400 (EDT) hamilto...@aol.com wrote: First, let me applaud Marty's memory. I am certain I could not tell you what was discussed on this list in 1999! I'm not sure I was even reading it then. In any event, this is not the Thomas case. In Thomas, the objection was based on the believer avoiding taking action that he would find in conflict with his faith. He could not, consistent with his faith, participate in the manufacture of materials used in arms. In this case, the alleged violation is in the financial support of a system in which others engage in acts that conflict with his religion. That is a step farther. That is what makes me most uncomfortable about this (along with the fact it singles out women's health). I understand that the argument is that the payment into the fund itself is a burden, but that cannot be a winning argument after Lee, or after Zelman or the 4-person plurality in Mitchell v. Helms, either. Under the Religion Clauses, money is fungible, and the entity/person sending money into a stream no longer has power/say/responsibility for how the money is used by independent actors who pluck it from that stream. So we are back to the question whether there is a free exercise right for a for-profit company to deter employees from engaging in acts that conflict with the employer's religion. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Cathy Kaveny asked me to send along this reaction to some of the issues we've been discussing: Hi all, This is a fascinating discussion. I'm sorry I can't participate more because I have to get ready for a couple of talks. So I'll limit myself to three quick points. 1. Is the cooperation permissible according to Catholic teaching? This seems to me to be, at the very least, a question Catholics can publicly raise and discuss. In my view, the insurance issue is remote mediate material cooperation with evil--the sort of thing that is justifiable with proportionate reason. The type of arrangement has been signed off on by moral theologians many times before. Much closer cooperation with graver evils has been justified --for example, the manualists have said that it is permissible for a nurse to hand the instruments to a doctor whom she knows is performing an abortion. What's the difference here? I think the key issue isn't the cooperation itself, but the scandal--the current bishops discern a need to take a stand against the culture of death. 2. Some have argued that the cooperation with evil is formal--i.e., intentionally furthering the wrongdoing because it is under a contractual arrangement. You're buying the insurance policy, it has contraception in it. You're intending to buy contraception. In my view, that's a mistake. The cooperation is intentional, but the contribution to the evil is praeter intentionem--beside the intention of the person contracting for the policy. 3. The more vexing question for me is the relationship between the ad intra discussion and the legal analysis. On the one hand, I don't think it's a good idea for courts to go mucking around in religious traditions, turning themselves into theologians of various faiths. On the other hand, I am leery of reading the notion of substantial out of the jurisprudence, so that any burden is substantial if any religious believer claims it is. Take care, and special thanks to Marty for organizing such a wonderful conversation! Best, Cathleen On Wed, Oct 3, 2012 at 11:31 AM, Marty Lederman lederman.ma...@gmail.comwrote: Mark: My point is that, as far as I know, for centuries *neither *case has been considered impermissible cooperation with evil under the mode of moral analysis you invoke (which I agree is respectable, indeed). Of course if the employer affirmatively *chose* to cover contraception, or had a legal choice whether to accept a plan with it or without it, and chose the former, that would be a form of *formal *cooperation with evil, which is proscribed (assuming, as I am here for sake of argument, that contraception is in fact evil from the employer's perspective). But absent such consent or choice, as here, the question is whether the material cooperation is sufficiently proximate -- and my understanding is that the proximity in these cases would be the same, and *not *sufficient to raise the prospect of impermissible cooperation. FWIW, Cathy Kaveny (copied here) offered a really fantastic summary of the Catholic doctrine on this at the beginning of our second panel: http://www.youtube.com/watch?v=1J4rCsq732c ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic theologian, who takes the view that the payment of taxes or salaries is wrongful just because the employer knows that they will be put to use for contraception and (in the case of salaries) abortions . . . and many other things, besides, that are wrongful in the eyes of the employer. Thus the question here is whether the state ought to take at face value the assertions of some employers that the moral obligation changes dramatically when the money is used for partial subsidization of an insurance plan, rather than for taxes or salaries. I actually think this is a complex question, as to which I deeply appreciate the many thoughtful views others have contributed to this thread. But whatever the merits of that distinction, the case is a far cry from compelling the employer to kill another human being. On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock dlayc...@virginia.eduwrote
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.eduwrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *b...@jmcenter.org *Sent:* Tuesday, October 02, 2012 11:36 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Can I ask a quick question for people like Marci, Marty, and others who doubt the existence of a “substantial burden”? What about United States v. Lee? The Amish object to paying Social Security taxes. The government makes them. The decision to use the taxes for Social Security is the government’s, not the Amish. The Amish say, “Well, we object to giving you money to pay for that.” The Court says there’s a burden. Isn’t this case just Lee again? What am I missing? (If I’ve missed earlier posts discussing this, I’m sorry.) Best, Chris ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Re: Chris Lund's question about Lee -- The Amish take care of their own who are disabled or no longer able to work. They didn't want to pay twice -- once for FICA contributions, and again in their own community. And the FICA contributions were earmarked for just that use. Employers objecting to the ACA mandate are not concerned about paying twice. They want to be immune from even the appearance of support for these services, even in a context where they can openly condemn the services. The religious entity employers (who can refuse to hire those who use such services) don't even have to pay once. They just want to be entirely out of the causation loop between ACA policies and the provision of pregnancy prevention services. Many taxpayers would like to be out of the causation loop between paying taxes and financing causes they find deeply immoral -- the death penalty, some or all wars, etc. Of course, we can handle this on the compelling interest side (need for uniformity), but the question of attenuation and distance between the status (employer, taxpayer) and the conduct remains. The question does not disappear because the claimant says so. On Wed, Oct 3, 2012 at 10:35 AM, Christopher Lund l...@wayne.edu wrote: Can I ask a quick question for people like Marci, Marty, and others who doubt the existence of a “substantial burden”? ** ** What about *United States v. Lee*? The Amish object to paying Social Security taxes. The government makes them. The decision to use the taxes for Social Security is the government’s, not the Amish. The Amish say, “Well, we object to giving you money to pay for that.” The Court says there’s a burden. Isn’t this case just *Lee *again? What am I missing? (If I’ve missed earlier posts discussing this, I’m sorry.) ** ** Best, Chris ** ** ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Isn't that like saying, if it's OK for you to 'produc[e] the raw product necessary for the production of any kind of tank,' why is working on tank turrets any different?? Why isn't the answer much like that given in Thomas: But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.? Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I think Doug is right that it doesn't matter whether it costs money or saves money. The objection is any money going to the religiously prohibited use. You see this kind of argument in Establishment Clause cases. The government says to a taxpayer, You need to pay money to fund a religious school. The taxpayer says, I object to my money supporting the religious functions of the school. The government says, Well, you'd have to pay for a public school anyway, and that would cost more. So you're just saving money this way. The government's logic here was rejected, and I think rightly, in Smith v. Jefferson County Bd. of School Com'rs, 641 F.3d 197, 211 (6th Cir. 2011) (A municipal taxpayer has standing to challenge any unconstitutional appropriation or expenditure, regardless of whether more money would have been spent had the government remained within constitutional bounds. Taxpayer standing in this context will not turn on whether it was a bargain to violate the Constitution.). Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 10:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Tuesday, October 02, 2012 11:36 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
And the point then, Marty, is that for centuries there has been a respectable mode of moral analysis in which the directness of involvement in an action is related to moral complicity. Buying an insurance policy that constitutes an agreement by the employer to subsidize a specific activity is a much more direct involvement than just paying wages that an employee may use in any way the employee chooses. Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer's perspective, it doesn't matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546tel:434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Mark: My point is that, as far as I know, for centuries *neither *case has been considered impermissible cooperation with evil under the mode of moral analysis you invoke (which I agree is respectable, indeed). Of course if the employer affirmatively *chose* to cover contraception, or had a legal choice whether to accept a plan with it or without it, and chose the former, that would be a form of *formal *cooperation with evil, which is proscribed (assuming, as I am here for sake of argument, that contraception is in fact evil from the employer's perspective). But absent such consent or choice, as here, the question is whether the material cooperation is sufficiently proximate -- and my understanding is that the proximity in these cases would be the same, and *not *sufficient to raise the prospect of impermissible cooperation. FWIW, Cathy Kaveny (copied here) offered a really fantastic summary of the Catholic doctrine on this at the beginning of our second panel: http://www.youtube.com/watch?v=1J4rCsq732c On Wed, Oct 3, 2012 at 11:15 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: And the point then, Marty, is that for centuries there has been a respectable mode of moral analysis in which the directness of involvement in an action is related to moral complicity. Buying an insurance policy that constitutes an agreement by the employer to subsidize a specific activity is a much more direct involvement than just paying wages that an employee may use in any way the employee chooses. ** ** Mark ** ** ** ** ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 7:49 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer’s money mediated by independent decisions of others. It’s the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 7:03 AM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is *lower* because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock dlayc...@virginia.edu wrote: The burden on religion in these cases is not the amount of money. It is arranging for, contracting for, and paying for services the employer believes to be deeply immoral. From the believer’s perspective, it doesn’t matter whether it costs money or saves money. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Eugene has it exactly right. On a related note, if, as some people have claimed, insurance premiums would be higher if contraceptive, sterilization etc. services were not covered (due to additional pregnancies), then it becomes perfectly obvious that the objection is not a disguised attempt to avoid costs. The analogy is imperfect, but it's like a taxpayer being allowed to check a box on a tax return that will cause the taxpayer to have to pay 10% extra in taxes, but will also cause the govt to segregate the taxpayer's payment (into a lockbox?) so that none of the money is traceable to payment for armaments. A taxpayer who checks the box certainly can't be accused of claiming a conscientious objection to war in order to save money. (The analogy is imperfect for various reasons. For example, one who pays taxes is not being required to assent to the use of the taxes for any purpose. It also seems unlikely that insurance rates actually will be lower if contraception is covered. The main effect of the HHS requirement, insofar as it deals with contraception, may be that people switch from inexpensive birth control methods - e.g., generic pills that have been on the market for a long time - to more expensive kinds - e.g., the latest name brand version that is still under patent. The requirement, if I understand it correctly, requires coverage of all FDA approved contraceptives (without a copay and without a higher copay for nongeneric drugs. I wonder whether the pharmaceutical companies helped write it.) Mark From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, October 03, 2012 8:07 AM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Isn't that like saying, if it's OK for you to 'produc[e] the raw product necessary for the production of any kind of tank,' why is working on tank turrets any different?? Why isn't the answer much like that given in Thomas: But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one.? Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:49 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden That's the point, Mark. The employer freely, and without objection, enters into an employment contract with the employee to pay wages in exchange for labor, knowing full well that some % of the wages will be used for contraception, abortion, and probably a bunch of other things the employer considers sinful. Now, the state requires that the contract be changed slightly, so that in exchange for labor, the employee gets not only wages (in effect diminished because of the cost of the health insurance), but also access to a health insurance plan. What I think the judge was getting at here was: If the first contract is morally unobjectionable, why is the second any different? On Wed, Oct 3, 2012 at 10:37 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: But it simply is not the case that the alleged burden is use of the employer's money mediated by independent decisions of others. It's the requirement that the employer enter into a contract that subsidizes actions that the employer believes to be immoral. No one, as far as I know, has claimed that he or she can withhold payment of wages because the employee might choose to use the money to obtain contraceptives or other services. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 7:03 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks, Chip. A couple responses. The way I read Lee, the burden was not that the Amish had to pay twice. The burden was that they had to pay the government at all. See, e.g., Lee, 455 U.S. at 257 (We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.). True enough that the Amish took care of their own. But this seems like a background fact necessary to explain (and tacitly validate) the Amish's religious beliefs; it does not seem necessary to the finding of a burden. Footnote 6 of the opinion refers to another organization (Sai Baba) that the Court says does not provide for their own members. The Court mentions their views as a reason to think that the Amish belief is bona fide; the Court does not suggest that there would be no burden in that case. But your post also led me down a logical trail that makes me think the burden in the ACA case might be clearer than the burden in Lee. The Amish's religious objection in Lee starts with a Biblical requirement that religious communities provide for their own members. The government's brief in Lee sensibly asks, Why is this a burden? You can provide for your own people, but still pay social security taxes. (See U.S. Br. in Lee, at 10-11.) The Amish respond in their brief by saying, No, well, also it's a sin to pay the taxes at all. It's not clear to me this is the most natural reading of the Biblical text. But the Supreme Court doesn't want to get into that. So they (again citing Thomas) say, We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. I think that whole accept appellee's contention language is important-the Court may not necessarily believe it, but will not investigate it further. The Court in Lee thus goes to lengths to interpret the religious objection as the kind of religious objection that the ACA plaintiffs raise: The government is requiring us to pay money that will go toward things to which we religiously object. And the Court unanimously finds that to be a burden. Of course, none of this speaks to the sincerity or the compelling-interest parts of it. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Wednesday, October 03, 2012 10:59 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Re: Chris Lund's question about Lee -- The Amish take care of their own who are disabled or no longer able to work. They didn't want to pay twice -- once for FICA contributions, and again in their own community. And the FICA contributions were earmarked for just that use. Employers objecting to the ACA mandate are not concerned about paying twice. They want to be immune from even the appearance of support for these services, even in a context where they can openly condemn the services. The religious entity employers (who can refuse to hire those who use such services) don't even have to pay once. They just want to be entirely out of the causation loop between ACA policies and the provision of pregnancy prevention services. Many taxpayers would like to be out of the causation loop between paying taxes and financing causes they find deeply immoral -- the death penalty, some or all wars, etc. Of course, we can handle this on the compelling interest side (need for uniformity), but the question of attenuation and distance between the status (employer, taxpayer) and the conduct remains. The question does not disappear because the claimant says so. On Wed, Oct 3, 2012 at 10:35 AM, Christopher Lund l...@wayne.edu wrote: Can I ask a quick question for people like Marci, Marty, and others who doubt the existence of a substantial burden? What about United States v. Lee? The Amish object to paying Social Security taxes. The government makes them. The decision to use the taxes for Social Security is the government's, not the Amish. The Amish say, Well, we object to giving you money to pay for that. The Court says there's a burden. Isn't this case just Lee again? What am I missing? (If I've missed earlier posts discussing this, I'm sorry.) Best, Chris ___ 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chris, I respectfully disagree with the ipso facto view that a plaintiff is substantially burdened when ever compelled to do something their religion forbids. Burdened yes, substantially burdened maybe. This may sound cold, but it's business. I would suggest to people who oppose the mandate to move on but I know that isn't going to happen. I believe that current mandate found the correct accommodation in balancing the interests of employers and employees. Obviously, some disagree. Not said in this discussion so far is that in the name of religion much ill is done (including war and discrimination). In my view, broadening the accommodation would add to the list. (I would see granting the accommodation to O'Brien like granting a religious exemption to parents from seeking medical care for their sick children.) Bob Ritter On October 2, 2012 at 1:05 PM Christopher Lund l...@wayne.edu wrote: As for Chip and Bob Ritter’s point about the burden being “substantial,” I think that anytime a plaintiff is forced to do something their religion forbids, that is not just a burden but a substantial burden. I think the Court made this clear by implication in Hernandez. See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (“We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists' practices is a substantial one. Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically.”). This is not to say that the word “substantial” makes no difference. It may be important in other kinds of cases like, say, Braunfeld—cases where the government makes the religious practice more onerous but does not forbid it. (For another example, we could go back to my discussion with Marci about a prison that doesn’t force a Jew to eat non-Kosher food, but puts him on a Kosher diet that is significantly worse than that of other inmates.) I think Chip has rightly diagnosed the deep divide between the two groups. I think there are merits and demerits to both sides. But I think the Court has chosen the first position. Subject to the sincerity inquiry, churches do indeed get to “self-declare” what their religious views are. I know that sounds weird, but wouldn’t it be weirder if they didn’t? Certainly this broad conception of “burden” will lead to outcomes like Lee: As the scope of the religious objection grows wider and wider, the government’s claim of a compelling interest becomes more and more persuasive. Maybe the Court’s adoption of a broad sense of “burden” in cases like Lee helped lead to Employment Division v. Smith. Gosh knows, it was part of Boerne. See City of Boerne v. Flores, 521 U.S. 507, 535 (1997) (“It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals.”) But it seems to me that this is the path we’re on. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, October 02, 2012 11:10 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The formal findings in RFRA reference Sherbert and Yoder, but not Thomas. Significant? Should Thomas even apply to artificial persons, like holding companies, corporations, and religious non-profits? Shouldn't they be required to articulate with clarity and precision just how their religious exercise is burdened? I have not yet seen a reply to Bob Ritter's very good question about what work is being done by the word substantial in RFRA. It has to mean something. Does it refer to material burdens (e.g., one must pay a fine of $X if one insists on compliance with one's own religious conscience)? Or does it refer to the religious substantiality of the burden? The list appears to divide into two groups on this burden question. One one side, the claimant gets to self-declare, and that triggers the strict scrutiny of RFRA. That seems to wildly over-enforce religious freedom. Consider the religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, Title VII, etc. On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip On Tue, Oct 2, 2012 at 10:46 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Marty, obviously worthy questions. No answers, just some thoughts. 1. I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is burden, and if we interpret it broadly, then there's a risk of a taffy pull-every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that strong claims get treated much worse. I don't have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that-apart from prisons-the weakest claims aren't brought, or don't find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn't feel this way, but I do. And I bet judges do too. 2. (I agree about the difficulties of Gillette.) One thing: The claimant's say-so of a religious burden. A plaintiff's subjective views of a burden are irrelevant-that's Lyng and Bowen. But plaintiffs' subjective views of their own religion are controlling-that's Thomas, and Lee, and others. There's a difference there, and the gap creates a real check. Yes, plaintiffs can create a burden by willing to plead whatever religious beliefs necessary to get them there, but I'm not convinced they would do that. And I think sincerity is a legitimate attack there. 3. I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don't think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether they should be required to provide contraception to their employees, with (2) whether contraception should be provided at all (whether by other employers or the government). The first is a religious liberty claim, where I am sympathetic to the Church; the second is a public policy claim, where I am not. That the Church has sometimes mixed the two together opens the door to a doubt about sincerity: Maybe the Catholic Church just doesn't like contraception generally, and this is just another tactic to minimize its spread. But I think a plausible reading of the Church's position is that while they dislike contraception across-the-board, there are special problems with them being forced to provide it. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 11:17 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chris: You and Marc raise absolutely valid points about doctrine during the Sherbert/Yoder era: The argument I'm suggesting (I'm not advocating it yet -- merely thinking it through) is in at least some tension with the sheet-metal/turrets portion of Thomas, and perhaps the burden discussion in Lee (I can't recall offhand what the Amish theory was about why the Social Security taxes violated their religion, but I assume it was something akin to the cooperation with evil theory being floated here; although as Chip suggests, it also involved some aspect of double-payment). So, simply in terms of what the right answer is or ought to be under RFRA, the government will obviously have to contend with those cases, either by suggesting (as someone here did) that perhaps RFRA did not incorporate their burden analysis wholesale (I'm dubious, but haven't thought it through), or that this case is distinguishable. But I'm not simply asking what the right answer is under RFRA. I'm trying to address at least three other questions raised by these claims: 1. Was Burger right on the turrets/sheet-metal point? Should the courts actually treat all religious claims of substantial burden uncritically, without even asking whether and to what extent the claimant's own conduct calls into question whether the burden is in fact substantial from the claimant's own religious perspective? If the courts do not differentiate at all between the plausibility and strength of such claims, and treat all alleged substantial burdens alike, is that a good thing for religious liberty? After all, it means that if the government were to voluntarily give exemptions, or be compelled by the FEC/RFRA to do so, it would have to cover a much, much wider class
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it’s merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I’m not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can’t use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Marty Lederman To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock wrote
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, The substantial burden theory here is not new, it's merely another factual iteration of what the Supreme Court has previously recognized in cases like Yoder to be a substantial burden: levying a financial penalty against an individual who refuses to violate his sincere religious beliefs (whatever those beliefs might be) is a per se substantial burden.As I noted earlier, the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs).Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. I'm not smart enough to debate whether the religious claimants are channeling Nietzsche, but I suspect most of them are good people who simply wish the government would return things to the state of affairs that existed before it imposed the mandate. That is, recognizing a religious accommodation to the mandate under RFRA merely returns things to the empirical world that existed pre- mandate: the non-believing employee still has the power to spend her money to purchase contraceptives and abortifacients or work for an employer who does cover them; she just can't use the machinery of the state to compel the believing employer to put up the money to pay for them. Blessings, Derek From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] Sent: Wednesday, October 03, 2012 10:22 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The burden in these cases is a newly configured theory of burden, wherein the believer is attempting to alter a neutral, generally applicable system so that nonbelievers will be deterred from engaging in practices the believer disapproves of. It is no longer about the believer him or herself, but also about the power of the believer to affect non-believer's choices relative to the believer's religious world view. The key problem here is the imposition of the employer's world view on the independent medical choices of the employee. No case has protected this kind of overreaching regarding conduct. From a philosophical perspective, it is the classic Nietzschean will to power. That doesn't mean the belief is not sincere, but rather that the asserted beliefs no longer are solely about the practice of the individual but also about suppressing the practices of others. The free exercise clause doesn't protect it. On a different note, does anyone think that Title VII would permit a sexual harrassment, gender discrimination, or hostile work environment claim in the following scenario: The employer is opposed to abortion on religious grounds, and posts anti-abortion signs in every woman's bathroom, which include a statement that the employee who obtains an abortion will have problems. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Marty Lederman To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Wed, Oct 3, 2012 10:04 am Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, if the claim of a religious burden is -- as the plaintiffs in virtually all of these cases has alleged -- based upon the notion that the employer is prohibited from permitting its money to be used for contraception, even as mediated by independent decisions of others; and if, as the government alleges, in fact the actual cost to the employer of providing the plan is lower because of the inclusions of contraception (the use of which avoids much higher costs associated with pregnancy), then in a very real sense the employers' dollars are not being used, even remotely and indirectly, to subsidize contraception. Seems to me that, too, would significantly undermine the substantial burden claim, and not because of any governmental disagreement on the nature of religious obligations. On Wed, Oct 3, 2012 at 9:55 AM, Douglas Laycock wrote
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
It cannot be the answer that the coverage is mandated. Whether the coverage can be mandated is the question. The employer signs a contract, and pays for a contract, that covers these services. But for the regulation, he could sign and pay for a very similar contract that does not cover these services. Re saving money: I’m going to tweak the facts to isolate the issue of cost saving. I’m going to make the religious objection one that everyone would share. I understand that these hypothetical facts are extreme. The point is only to separate the issue of saving money from all the other issues. Suppose the church runs an orphanage with 1000 children. It invites bids on a contract to feed the children for a year. It specifies the quantity and quality of food. It gets two bids. The first bid is $1.5 million. The second bid is $1.3 million. The second bidder specifies that after the contract is awarded, it will take the 100 oldest children, drive them to the nearest big city, and dump them on the street. There will be no need to feed them anymore. The church should not worry that it is paying for this immoral act, because it isn’t paying – it is actually paying less instead of more. But of course the church would think itself morally responsible if it signed that contract. From the church’s perspective, if contraception saves money, it will do so by preventing children from being born. Most of us think that contraception is good thing. But if you think it an evil thing, the fact that it saves money does not make it morally acceptable to contract for it, or to pay for a package that includes it. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: b...@jmcenter.org [mailto:b...@jmcenter.org] Sent: Wednesday, October 03, 2012 1:23 PM To: Douglas Laycock Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug, thank you for responding but I still don't comprehend your point. (By the way, you slipped the money back into the argument.) Since the coverage is mandated and operative clauses are likely boilerplate (thus no or virtually no arranging and contracting: for the contraceptive, etc. coverage) and under the scenario I presented that the employer is charged nothing additional, I suspect that what is left is merely that an employer maybe upset that his or her employees have an opportunity to participated in the mandated services. Much to attenuated for me to call the mandate a substantial burden on the employer's free exercise of religion. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
, 2012 1:23 PM *To:* Douglas Laycock *Subject:* RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug, thank you for responding but I still don't comprehend your point. (By the way, you slipped the money back into the argument.) Since the coverage is mandated and operative clauses are likely boilerplate (thus no or virtually no arranging and contracting: for the contraceptive, etc. coverage) and under the scenario I presented that the employer is charged nothing additional, I suspect that what is left is merely that an employer maybe upset that his or her employees have an opportunity to participated in the mandated services. Much to attenuated for me to call the mandate a substantial burden on the employer's free exercise of religion. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 ___ 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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
A couple of quick thoughts regarding your points, Chris. 1. If we are talking about existing laws such as RFRA or other laws that require strict scrutiny review, there may be a dilution problem (although like you I have seen strict scrutiny diluted in state RFRA cases and in RLUIPA cases without any evidence that this has crossed over to other areas of law.) Also, because courts often do not really apply strict scrutiny in RFRA and RLUIPA cases, notwithstanding the clear language of the statutes, the insistence that courts rigorously enforce a substantial burden threshold seems harder to justify. In any case, from a more abstract perspective, we can re-think both the standard of review and the substantial burden threshold. That's at least the focus of my posts. 2. When you talk about plaintiff's creating a burden that sounds like religious beliefs have clear parameters governed by logical rules. I'm certainly not a theologian, but for a lot of individuals, religious beliefs and duties are relational and they are evolving in the sense that individuals don't always think about what their religion requires in hypothetical situations. Relational beliefs and duties are rarely logical. (Certainly, my relationships with people who are important to me aren't logical.) As for evolving understandings, it seems just as plausible to say that a religious individual confronted with a new question or situation realizes that a government mandate burdens his or her faith than it is to say that they create a burden to get their claim adjudicated on the merits. Outside of the prison context, I have seen very few free exercise or RFRA claims where plaintiffs are asserting sham beliefs to benefit unfairly from religious liberty legislation. (List members can correct me if I'm wrong about this.) 3.I can't summarize the position of the Catholic Church on contraceptive mandate laws at the national level or in other states. But in California, when the Women's Contraceptive Equity Act (the state forerunner of the HHS regulations) was debated in the legislature, the Catholic Conference took a neutral position on the law but strongly insisted on a religious exemption for Catholic Charities and other Catholic non-profits (which it did not receive.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, October 03, 2012 9:41 AM To: 'Law Religion issues for Law Academics' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marty, obviously worthy questions. No answers, just some thoughts. 1. I think I feel the same way you do. Burden, sincerity, and centrality all were used to restrict the scope of the compelling-interest test. The Court has junked centrality, and has limited inquiries on sincerity. All that is left is burden, and if we interpret it broadly, then there's a risk of a taffy pull-every claim receives some constitutional protection, which dilutes the compelling-interest test, ultimately meaning that strong claims get treated much worse. I don't have an answer to this; I wish I did. But I wonder if this fear is a bit overblown. We got rid of the centrality inquiry 20 years ago, and rigorous inquiries into sincerity 30 years ago, and RFRA/state RFRAs seems to work fine without them. My sense is that-apart from prisons-the weakest claims aren't brought, or don't find lawyers, or get dismissed on doctrinally-unjustifiable-but-realistically-understandable grounds. But I do worry about the taffy pull. What has alarmed me most about the HHS litigation is the private employers. I am sympathetic to the claims of the Catholic Church (in all of its iterations); I am less sympathetic to the private owner of a for-profit business wanting not to provide contraception coverage. Maybe I shouldn't feel this way, but I do. And I bet judges do too. 2. (I agree about the difficulties of Gillette.) One thing: The claimant's say-so of a religious burden. A plaintiff's subjective views of a burden are irrelevant-that's Lyng and Bowen. But plaintiffs' subjective views of their own religion are controlling-that's Thomas, and Lee, and others. There's a difference there, and the gap creates a real check. Yes, plaintiffs can create a burden by willing to plead whatever religious beliefs necessary to get them there, but I'm not convinced they would do that. And I think sincerity is a legitimate attack there. 3. I think this issue comes ultimately before the Court, but as a sincerity issue not as a burden issue. And to be clear, I don't think it should be off the table. At various times, quite maddeningly, the Catholic Church has confused the issue of (1) whether they should be required to provide contraception to their employees, with (2) whether contraception should be provided
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 3:26 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have chosen to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question not of whether your volitional choice was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral even though you were well-intentioned. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that certain action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the choice to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation of the norm against formal cooperation with evil. City B, however, has decided to treat cab drivers as common carriers -- they must accept all fares, no matter the destination. Our same cab driver, thinking that prostitution is unlawful, but now working in City B, abides by the law, picks up all fares without discrimination . . . and occasionally finds himself being asked to drop the passenger at a so-called house of ill-repute, a request that (like all others) he honors. In this case, he has performed exactly the same act as he did in City A, but this time, he has not violated religious tenets. Seems to be that in most material respects, the HHS Rule is more like my taxi driver in City B -- or the taxpayer in any jurisdiction -- than like your hypo of a Church that would gladly leave kids on the street in order to save a few bucks. On Wed, Oct 3, 2012 at 3:04 PM, Douglas Laycock dlayc...@virginia.edu wrote: It cannot be the answer that the coverage is mandated. Whether the coverage can
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.eduwrote: Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. ** ** Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. ** ** Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. ** ** The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 3:26 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question * not* of whether your *volitional choice* was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral *even though you were well-intentioned*. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that *certain *action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring the conduct surely imposes a substantial burden on religious exercise, at least if the person in question otherwise is committed to abiding by that norm. But in most cases, including this one, the fact of legal compulsion does radically alter the moral calculus, because it eliminates the principal thing that made the conduct in your hypo wrongful, namely, the *choice*to sacrifice the kids for $200,000 savings. Suppose, for example, that in City A, taxi drivers have complete discretion which fares to accept, and a taxi driver who believes that prostitution is immoral chooses to prefer fares going to so-called houses of ill-repute, because they much more remunerative (because of distance, clientele, whatever). That choice would be a violation
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I did not mean to say that the bishops are saying that no Catholic employer can comply. I don't know what they are saying about that. Quite possibly nothing. But they are saying loud and clear that the Catholic institutions for which they are responsible cannot comply, and they are saying that in the face of government coercion. They are obviously saying that government coercion does not justify them in complying. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 4:57 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 3:26 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have chosen to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference for purposes of Catholic (and most other) moral reasoning, because now we're asking the question not of whether your volitional choice was impermissible (as in your hypo), but instead whether your proximity to the evil, in and of itself, is so great that your cooperation is immoral even though you were well-intentioned. You're right, of course, that the fact that coverage is legally mandated can't categorically eliminate the prospect of a substantial burden, because in that case there'd never be a valid RFRA claim. So, for example, a religion might teach that certain action is immoral, even if done under duress -- indeed, even if done under threat of criminal sanction. In such a case, a state law requiring
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Loud -- I agree. Clear? Not so much. Have they said that such institutions cannot comply? Indeed, I'm not even sure they've instructed such institutions that they must make the alternative payment to the government if they are not exempted. Again, I genuinely don't know -- perhaps the Bishops have said just that, in which case it would be very useful to be referred to whatever they've said. On Wed, Oct 3, 2012 at 4:59 PM, Douglas Laycock dlayc...@virginia.eduwrote: I did not mean to say that the bishops are saying that no Catholic employer can comply. I don’t know what they are saying about that. Quite possibly nothing. But they are saying loud and clear that the Catholic institutions for which they are responsible cannot comply, and they are saying that in the face of government coercion. They are obviously saying that government coercion does not justify them in complying. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 4:57 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Doug: Is it actually the case that the bishops say these rules are too important to them for a following orders defense to provide moral justification? That is to say, have the bishops, or any other Catholic authority, actually articulated the view that a Catholic employer will engage in forbidden proximate material cooperation with evil if it complies with the HHS Rule? And if so, have they provided any explanation of why that is the case here and not, e.g., in the cases of paying taxes and salaries, or in the case of my hypothetical common carrier taxi driver who takes a woman to a clinic for an abortion? I'm not saying there have been no such statements -- I simply haven't heard them, and would be very grateful to be pointed to any such statement. On Wed, Oct 3, 2012 at 4:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, October 03, 2012 3:26 PM *To:* Law Religion issues for Law Academics *Cc:* M Cathleen Kaveny *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have *chosen* to save the $200,000 by having the kids dumped. That would be a form of (presumptively prohibited) formal cooperation with evil. But here, the state has eliminated the choice. (Well, not quite -- because the employer can still make the payment to the government instead of offering the insurance plan. But let's assume for sake of argument that it's a flat requirement, or that the level of payment make noncompliance unrealistic.) And that makes a huge difference
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
To follow up on Doug's point, in some cases whether a religious person is relieved of an obligation because of duress might depend on the kind and magnitude of the duress. Obligations may be excused if compliance places the individual's life at risk, for example. Under Marty's analysis, would this mean that the greater the punishment imposed by the state in requiring someone to violate their religious obligations, the less likely it will be that this requirement constitutes a substantial burden on religion? The greater the duress - the less choice the religious individual has to refuse to comply - therefore the weaker the claim to a substantial burden on religion. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, October 03, 2012 1:46 PM To: 'Law Religion issues for Law Academics' Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, Marty's response at least seems to agree that saving money doesn't take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church's choice - but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I really don't understand Mark's argument here: If one accepts a (strong version of) Romans 13:1 re the legitimacy of magistrates and therefore feels impelled to obey them (as Scalia has suggested he does), then why is it a burden at all, since by definition what the magistrate (appointed by God, even if one can't quite undersatnd why) is a legitimate authority. We're not talking about authoritarian personalities with a psychological predisposition to follow authority, but, rather religions that have strong belief in obeying the authorities (presumably because of a theology that derives from Romans 13:1.) It's tricker if we're talking about a belief that one should obey rather than avoid civil strife. But isn't avoiding civil strife generally desirable. Of course, the argument is that there shouldn't be such strife because the rest of us should tolerate the disobedience. But doesn't that depend on the specifics of what is being disobeyed? sandy From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark [mark.scarbe...@pepperdine.edu] Sent: Wednesday, October 03, 2012 4:44 PM To: Law Religion issues for Law Academics Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden A “following orders” defense disadvantages religions that have strong belief in obeying the authorities, or that balance the need to avoid civil strife against the need to follow religious precepts. I don’t think the successful coercion of religious people should cut against their right to free exercise. Coercion is not freedom. If you send your kids to a public school that has Bible readings and prayers, because you can’t afford private school, and because there are mandatory education laws, does the successful coercion eliminate the invasion of religious freedom? If your kids tell your kids to go ahead and recite the pledge because otherwise they will be punished, do you and they forfeit your First Amendment claim? (Of course, any other approach is circular; if you are willing to suffer the consequences, then you don’t have to suffer the consequences, because (or assuming) your religious freedom claim succeeds.) Do people have to be willing to go to jail or to pay large fines in order to have religious freedom claims? We may test sincerity, but we don’t require heroism. Mark S. Scarberry Pepperdine Univ. School of Law Malibu, CA 90263 (310)506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Wednesday, October 03, 2012 1:46 PM To: 'Law Religion issues for Law Academics' Cc: 'M Cathleen Kaveny' Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Well, Marty’s response at least seems to agree that saving money doesn’t take away the claim. Does following government orders take away the claim? If it did, as Marty notes, there could never be a RFRA claim. If the government funded the orphanage, and ordered the church to take the cheaper food contract, it would take away the church’s choice – but the church would not feel at all exonerated. Some people feel exonerated by a following orders defense, and some do not. And I suspect many people feel that following orders can justify violations of minor rules, but cannot justify serious wrongdoing. Lots of RFRA claims are never filed because people with religious objections go along when their objections are not strong enough to motivate a difficult fight with the government. The bishops say these rules are too important to them for a following orders defense to provide moral justification. And I find nothing implausible in that claim. With respect to the drugs that they believe sometimes cause abortions, I would be astonished if they took any other position. With respect to ordinary contraception, I think many of us are finding it hard to believe they take the rule so seriously, because we think the rule is so stupid. But it is very important to the bishops, and to some conservative Catholics, and they are saying that following orders cannot justify them in paying for a policy that will provide these drugs. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, October 03, 2012 3:26 PM To: Law Religion issues for Law Academics Cc: M Cathleen Kaveny Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden If I understand the Catholic doctrine, Doug, in your hypothetical the church will have chosen to save the $200,000 by having the kids
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
Mr. Ritter, First off, this isn’t a blog. Second, it isn’t helpful or persuasive to dismiss the arguments of those with whom you disagree as “disguised whining.” Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of b...@jmcenter.org Sent: Monday, October 01, 2012 6:05 PM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate The beliefs can be serious and strong. But that alone is not sufficient to make the burden substantial. Reminds me of taxpayer standing cases. A federal taxpayer generally doesn't have standing to challenge appropriations because his or her tax dollars cannot be specifically traced to the objection expenditure. De minimis. So no standing. On the other end is Barnette -- where Barnette was compelled to salute the American flag. The contraceptive mandate is somewhere in between. The employer isn't forced to use contraceptives. Isn't even forced to say their use is morally OK. In fact, as Judge Jackson notes, can even suggest to employees not to use them. The line unfortunately must be drawn somewhere on the slippery slope. A lot of what I'm reading on the is blog written by those who oppose Judge Jackson's decision sounds more like disguised whining than sound arguments that the mandate imposes a substantial burden on employers with a religious viewpoint opposed to contraception. Bob Ritter On September 30, 2012 at 2:30 PM Berg, Thomas C. tcb...@stthomas.edumailto:tcb...@stthomas.edu wrote: Marty, The fact that services must be covered in the plan by virtue of legal mandate (are required by law) can't be enough to counter the asserion of a burden, can it--or even be a significant factor in countering it? That would do away with virtually every free exercise claim (I'm only providing facilities for an abortion, or I'm only receiving a blood transfusion, under legal compulsion). You place a lot of weight on the claim that most Catholic theologians say this isn't cooperation with evil, and that no one has articulated a serious argument that distinguishes this and paying salaries or taxes. I don't think those things are true (can one conference show it?): consider, for example, Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's argument here about inclusion of the services in the plan language. You and others may not find those arguments convincing. But rejecting the burden claim based on finding the distinction unconvincing, or on the existence of a great deal of skepticism among [Catholic] theologians, can't be squared--can it?--with Thomas v. Review Board, where the Court said that Thomas's judgment on what work would cooperate with the evil of arms production should be deferred to even though other Jehovah's Witnesses disagreed. Courts are not arbiters of scriptural interpretation; the court can't dismiss the! claim at the threshold because it concludes the asserted belief is not logical, not consistent, etc. Occasionally you seem to be treating this as a question of remoteness of facilitation for burden purposes independent of Catholic moral thought; but more often you return (as I think one must in assessing burden) to asking why claimants believe this is material cooperation with evil, from a Catholic moral perspective. That latter question, it seems to me, falls squarely within the restrictions of Thomas v. Review Board not to second-guess the claimant's understanding of its obligations. Tom - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edumailto:tcb...@stthomas.edu%3cmailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/http://www.mirrorofjustice.blogs.com%3chttp:/www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 11:56 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.commailto:lederman.ma...@gmail.com%3cmailto:lederman.ma...@gmail.com
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
A characterization of abortion as a killing, is a religious assessment, not a medical or constitutional category. A fetus is not a person for constitutional purposes. Even abortion foe Justice Scalia has publicly acknowledged that. Therefore, analyzing the cases as though abortion fits into killing cases is weaker than Doug has conceded. Moreover, in the conscientious objection cases, the religious objection on the part of Quakers is in favor of peaceful resolution of conflict, which is different from an objection to killing per se, and many COs are not objecting to war in general but rather a particular war. There is no justification for treating those who oppose the medical procedure of abortion on religious grounds any differently than any other religious objector to another medical procedure. For all the reasons that Native Americans cannot avoid the social security number requirement in the welfare context, the Amish cannot avoid Social Security taxes (absent an exemption), and Native Americans cannot force the federal government to use its property according to their beliefs, religiously affiliated employers cannot avoid a neutral, generally applicable requirement that medical insurance include the option, that is triggered solely the patient's decision in consultation with her doctor, of reproductive medical care. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 7:30 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden We have a long political tradition of treating objections to killing as a special claim, deserving special protection. We have exempted conscientious objectors in all our wars, even when national existence was on the line, and notwithstanding powerful incentives to dubious conversions or false claims. This protection has not been as broad as objectors would like; it is not immune to limitation when government chooses to assert its compelling interests. But it received very strong protection that grew stronger over time. In the war case, we all agree that draftees may be asked to kill other human beings, but the majority says these are lawful killings, and the minority says they are killings prohibited by God. In the abortion case, the majority believes it is not a killing of a human being; the conscientious objector believes it is. The disagreement over the nature of the killing comes at a slightly different point; I do not claim that the cases are identical. I do believe that there are sound reasons, reflected in our legal and political tradition, to give special deference to what the conscientious objector believes is a refusal to kill another human being. The cases also differ in the weight of the government's interest; it is almost never essential that an abortion be performed or assisted by a particular medical provider. On Mon, 1 Oct 2012 17:16:55 -0400 (EDT) hamilto...@aol.com wrote: In response to Rick, the answer to the question from my perspective is that a religiously affiliated organization (not a church) could be required to provide insurance that includes all possible medically feasible and advisable treatments. That is a classic, neutral, generally applicable law. Obviously, abortion is at times a medically feasible and medically advisable treatment. The employer buys an ombnibus insurance plan, and employers, consistent with medical advice and their own religious and personal views, choose what treatments they obtain. That seems to me constitutional. This is not distinguishable from the objections raised by Quakers having to pay taxes that support war or the Amish having to pay into social security that supports a set of relationships they believe are religiously wrong. I'm glad you asked this question, because it seems to indicate that the argument against the ACA at base appears to be that the belief against abortion is somehow more important than other beliefs. I don't see how the Establishment Clause permits that kind of religious belief prioritizing, or any of the free exercise cases either. No employer should be able to exclude blood transfusions, which are abhorrent to Jehovahs Witnesses, from medical coverage. I haven't heard anyone get behind such an exemption.But those opposing the ACA's reproductive health care provisions seem to be suggesting that somehow abortion opposition is a superior belief that deserves extra constitutional protection. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marty, For what it's worth, Doug states succinctly and well what is also my view (though, with respect to religious institutions, I believe that the mandate burdens religious freedom in the additional, integrity-compromising way that has been mentioned). I do not believe that our commitment to religious freedom means that we need to treat as burdens on that freedom (a) requirements that employers pay salaries to employees who might use the funds in ways to which the employer objects or (b) requirements that citizens pay taxes to governments who might use the funds in ways to which the taxpayer objects. (So, the whole it burdens the religious freedom of objectors for governments to provide scholarships to kids attending parochial schools line is, I think, misguided.) But, as others have pointed out, the compelled-insurance-coverage context is (the district court's ruling notwithstanding) at least distinguishable and, it seems to me, rises to the level of a substantial burden! -- even if, ultimately, one concludes that complying with the mandate does not amount to culpable cooperation with evil and even if, ultimately, one concludes that it is a justifiable and unavoidable (given the compelling interest, etc.) one. True, if one believes that, as a general rule, we should not accommodate religious believers and institutions who object to complying with duly enacted laws and promulgated regulations (at least some of the plaintiffs in the ACA cases have challenged the mandate on administrative-law grounds), then one is not going to think the argument for a broader exemption from the mandate is very strong. But, if one does believe that our commitments translate into at least a rebuttable presumption in favor of feasible accommodations, this strikes me as a good case for one. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 8:01 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Rick- Are you saying that RFRA stands for the proposition that there is a rebuttable presumption in favor of feasible accommodations? I hadn't heard it characterized in that way before. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Rick Garnett rgarn...@nd.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 8:19 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Marty, For what it's worth, Doug states succinctly and well what is also my view (though, with respect to religious institutions, I believe that the mandate burdens religious freedom in the additional, integrity-compromising way that has been mentioned). I do not believe that our commitment to religious freedom means that we need to treat as burdens on that freedom (a) requirements that employers pay salaries to employees who might use the funds in ways to which the employer objects or (b) requirements that citizens pay taxes to governments who might use the funds in ways to which the taxpayer objects. (So, the whole it burdens the religious freedom of objectors for governments to provide scholarships to kids attending parochial schools line is, I think, misguided.) But, as others have pointed out, the compelled-insurance-coverage context is (the district court's ruling notwithstanding) at least distinguishable and, it seems to me, rises to the level of a substantial burden! -- even if, ultimately, one concludes that complying with the mandate does not amount to culpable cooperation with evil and even if, ultimately, one concludes that it is a justifiable and unavoidable (given the compelling interest, etc.) one. True, if one believes that, as a general rule, we should not accommodate religious believers and institutions who object to complying with duly enacted laws and promulgated regulations (at least some of the plaintiffs in the ACA cases have challenged the mandate on administrative-law grounds), then one is not going to think the argument for a broader exemption from the mandate is very strong. But, if one does believe that our commitments translate into at least a rebuttable presumption in favor of feasible accommodations, this strikes me as a good case for one. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 8:01 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Rick, I understand the first part -- on which much of the disagreement has centered. (One can make the distinctions some are advocating, but should one is the hard part (for some). Drawing the line elsewhere makes more sense to others of us.) But I'm not sure how the second part works. If a court decides (or society decides) that giving insurance benefits mandated by the government is not cooperation with evil, then doesn't the substantial burden evaporate? Because isn't that what the erstwhile substantial burden is? So isn't this properly to be decided on the predicate which the adherent has the burden of proving and not on the strict scrutiny which places an insurmountable burden in many instances on the government? Steve On Oct 2, 2012, at 8:17 AM, Rick Garnett wrote: But, as others have pointed out, the compelled-insurance-coverage context is (the district court's ruling notwithstanding) at least distinguishable and, it seems to me, rises to the level of a substantial burden! -- even if, ultimately, one concludes that complying with the mandate does not amount to culpable cooperation with evil and even if, ultimately, one concludes that it is a justifiable and unavoidable (given the compelling interest, etc.) one. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ “Enjoy the little things, for one day you may look back and realize they were the big things.” Robert Brault ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate
: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marc DeGirolami [marc.degirol...@stjohns.edu] Sent: Sunday, September 30, 2012 10:36 AM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate I wonder what sort of evidence Marty is looking for. What arguments qualify
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Guys, I had to repeat the obvious but mere burden is not the legal standard for a violation of RFRA. Substantial burden is. Thus, some burden is permissible and, quite frankly, we all suffer burdens all day long but as the saying goes: There's no use complaining. Bob Ritter On September 30, 2012 at 3:24 PM Rick Garnett rgarn...@nd.edu wrote: Colleagues, I think it needs to be recalled that the cooperation with evil / violation of conscience issue is not, in the context of the RFRA and other arguments against the HHS mandate, the whole story. Religious freedom, both as a moral matter and as a legal one, can be burdened, in ways that call for justification, by laws that do not command (what the objector regards as ) immoral acts. Even if, for example, Marty were right that no serious cooperation-with-evil argument has been or could be advanced by, say, Notre Dame, it could still be (and, I think, clearly is) the case that the mandate burdens, say, Notre Dame's legally protected religious freedom rights Best, Rick (Sorry for the iPhone). Sent from my iPhone On Sep 30, 2012, at 2:39 PM, Christopher Lund l...@wayne.edu mailto:l...@wayne.edu wrote: We’ve talked about this before a bit on the listserv, and I don’t want to rehash old arguments—although I think I agree with Eugene Volokh’s comments when Marty raised this issue earlier, http://lists.ucla.edu/pipermail/religionlaw/2012-February/025600.html http://lists.ucla.edu/pipermail/religionlaw/2012-February/025600.html . But let’s assume for the moment that Marty is right, because it raises another issue. So let’s stipulate that Catholic Church’s traditional doctrine of cooperation-with-evil actually doesn’t forbid this. The Catholic Bishops’ position is entirely new. It’s not a mere application of the church’s old cooperation-with-evil doctrine. To help us imagine this, let’s say the Church issues the following statement: For a long time, as you all know, we have found abortion immoral. But this new Health Care Act has brought the issue to prominence and crystallized it for us. We have had reason to consider more deeply certain particular issues. And we decide today that abortion is so grievously sinful that we must change our position on cooperation-with-evil accordingly. We today expand the doctrine to apply in this situation. We will work out the theological details later; maybe a wholesale revision of the doctrine of cooperation-with-evil is in order. But we are convinced that the Health Care Act will cause us to violate God’s will. That is what matters; the doctrinal details can be worked out later. It seems to me that this is okay, that churches can change their theologies, and that they can choose to do theology by adjudication rather than rulemaking. Is there a reason why this should be wrong? Is it necessarily insincere? It seems to me to be pretty consistent with the way human beings reason generally. Best, Chris From: religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu ] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.com mailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 12:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Oops. Writing too fast. What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a no-burden holding in the ACA cases. Lyng and Bowen do indeed appear irrelevant. But Lee is not irrelevant; it supports a holding of substantial burden. The Court accepted the Amish claim that payment of social security taxes was forbidden by their faith, and concluded that requiring this payment “interferes with their free exercise rights.” But “not all burdens are unconstitutional. That state may justify a limitation on religious liberty . . .” And it went on to find a compelling interest in collecting taxes, including social security taxes. So in Lee, the Court said that payment of funds to the government, for a stated purpose that is religiously objectionable, is a constitutionally cognizable burden on free exercise. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Marci, read what you quoted. Read the passages I have boldfaced below. Bowen and Lyng were explicitly about government actions that required nothing of the plaintiffs. Those plaintiffs were not required to take any action at all. The government caused problems for plaintiffs’ religion, but it did not require them to do anything that violated their own understanding of their religion. A lot of people don’t like that distinction, but that’s what it was. The ACA plaintiffs are required to take action that violates their own understanding of their religious obligations. Many arguments remain beyond that point, but Bowen and Lyng do not address those arguments. Bowen and Lyng were cases that did not reach that first step. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 9:44 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, http://www.law.cornell.edu/supct-cgi/get-us-cite/476/693 476 U.S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 12:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Oops. Writing too fast. What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a no-burden holding in the ACA cases. Lyng and Bowen do indeed appear irrelevant. But Lee is not irrelevant; it supports a holding of substantial burden. The Court accepted the Amish claim that payment of social security taxes was forbidden by their faith, and concluded that requiring this payment “interferes with their free exercise rights.” But “not all burdens are unconstitutional. That state may justify a limitation on religious liberty . . .” And it went on to find a compelling interest in collecting taxes, including social security taxes. So in Lee, the Court said that payment of funds to the government, for a stated purpose
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
One does not have to believe that early abortions kill human beings to recognize the profound significance of performing, assisting, or procuring an abortion to those who believe it is a killing of a human being. If we all took the same view of every issue, we would not need a regime of religious liberty. Religious liberty is a response to disagreement on issues that some people on both sides find non-compromisable. It is never an adequate response to a religious liberty claim to say that the claimant is just wrong in how he views the disputed issue. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 8:16 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden A characterization of abortion as a killing, is a religious assessment, not a medical or constitutional category. A fetus is not a person for constitutional purposes. Even abortion foe Justice Scalia has publicly acknowledged that. Therefore, analyzing the cases as though abortion fits into killing cases is weaker than Doug has conceded. Moreover, in the conscientious objection cases, the religious objection on the part of Quakers is in favor of peaceful resolution of conflict, which is different from an objection to killing per se, and many COs are not objecting to war in general but rather a particular war. There is no justification for treating those who oppose the medical procedure of abortion on religious grounds any differently than any other religious objector to another medical procedure. For all the reasons that Native Americans cannot avoid the social security number requirement in the welfare context, the Amish cannot avoid Social Security taxes (absent an exemption), and Native Americans cannot force the federal government to use its property according to their beliefs, religiously affiliated employers cannot avoid a neutral, generally applicable requirement that medical insurance include the option, that is triggered solely the patient's decision in consultation with her doctor, of reproductive medical care. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Ordinarily we should accept a person's view of whether the actions required by the state relate closely enough to something prohibited by the person's religion so as to make the person complicit. Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Thomas v. Review Board. Remember that the kind of analysis applied by the Court in Sherbert and Thomas is the kind Congress wanted to bring back under RFRA. Here is a longer excerpt from Thomas. I think it is fair to say that the Court held that what counts is the religious person's view of whether actions make them complicit with evil: When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. (Footnote omitted.] ... In reaching its conclusion, the Indiana court seems to have placed considerable reliance on the facts that Thomas was 'struggling' with his beliefs, and that he was not able to 'articulate' his belief precisely. It noted, for example, that Thomas admitted before the referee that he would not object to 'working for United States Steel or Inland Steel . . . produc[ing] the raw product necessary for the production of any kind of tank . . . [because I] would not be a direct party to whoever they shipped it to [and] would not be . . . chargeable in . . . conscience. . . .' 271 Ind. at ___, 391 N.E.2d at 1131. The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable on! e. Courts should not undertake to dissect religious beliefs because the believer admits that he is 'struggling' with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ. ... The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Tuesday, October 02, 2012 5:43 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, I understand the first part -- on which much of the disagreement has centered. (One can make the distinctions some are advocating, but should one is the hard part (for some). Drawing the line elsewhere makes more sense to others of us.) But I'm not sure how the second part works. If a court decides (or society decides) that giving insurance benefits mandated by the government is not cooperation with evil, then doesn't the substantial burden evaporate? Because isn't that what the erstwhile substantial burden is? So isn't this properly to be decided on the predicate which the adherent has the burden of proving and not on the strict scrutiny which places an insurmountable burden in many instances on the government? Steve On Oct 2, 2012, at 8:17 AM, Rick Garnett wrote: But, as others have pointed out, the compelled-insurance-coverage context is (the district court's ruling notwithstanding) at least distinguishable and, it seems to me, rises to the level of a substantial burden! -- even if, ultimately, one concludes that complying with the mandate does not amount to culpable cooperation with evil and even if, ultimately, one concludes that it is a justifiable and unavoidable (given the compelling interest, etc.) one. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Enjoy the little things, for one day you may look back and realize they were the big things. Robert Brault ___ 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Of course, as Doug pointed out, here it is precisely what the govt is doing to the religious employer that is at issue. In terms of the intervening actor theory: We can accept that different people have different views of moral complicity – and respect those views in determining whether the law is requiring a person to violate his or her own religious conscience. For Establishment Clause purposes we can’t have multiple views of whether the government is illicitly aiding or inhibiting religion. For better or for worse, we either need a judicially constructed theory, or at least a judicially constructed theory of what the permitted range of approaches may be that a legislature may adopt. I don’t think there is an inconsistency in the arguments (1) that a requirement to enter into an insurance contract providing for payment for abortions makes the employer complicit, and the (2) that providing funds to parents for them to use for whatever kind of education for their children that they choose does not make the state “complicit” in the relevant Establishment Clause sense. More later if I have the time to amplify this thought. (Is that a promise or a threat?) Even if there is an inconsistency, the courts do not necessarily have to adopt the same view for point (2) that we allow people to hold on point (1). Mark Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu]mailto:[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Tuesday, October 02, 2012 6:44 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) [snip] This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, 476 U.S. 693http://www.law.cornell.edu/supct-cgi/get-us-cite/476/693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com ___ 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chip raises a problem I've been having a hard time understanding too. A burden does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being substantial) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective substantial to require some sort of material burden, I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to forfeit a benefit, pay a fine, or even face criminal prosecution (though I do not believe that the cases cited for this proposition support the view that this is a necessary condition). One might interpret this statement as a requirement that the plaintiff must be willing to suffer *at least* one of these three kinds of penalties in order for the burden to be substantial, or maybe to suffer at least some sort of penalty period (again provided that the penalty is substantial). It's difficult for me to see that we would want to test the religious liberty claim in all cases against a willingness to go to prison, for example (Chip writes about a related issue in his Failure of RFRA piece, I think). But even if we thought that willingness to pay a fine would be a good test for substantiality (which I'll admit doesn't seem unreasonable to me, in some cases), I wonder about how this would work in practice. That is, how would we know that the plaintiff was really willing to pay a fine rather than be forced to do something alleged to violate religious conscience? What would be the proof? I'll add that I am genuinely confused about the issue of substantiality of the burden, because it does seem to me to require more than something like subjective sincerity, but also to forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. If that is right, then what is left to determine the substantiality of the burden other than the degree to which the claimant is willing to suffer for his or her beliefs? Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, October 02, 2012 11:10 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The formal findings in RFRA reference Sherbert and Yoder, but not Thomas. Significant? Should Thomas even apply to artificial persons, like holding companies, corporations, and religious non-profits? Shouldn't they be required to articulate with clarity and precision just how their religious exercise is burdened? I have not yet seen a reply to Bob Ritter's very good question about what work is being done by the word substantial in RFRA. It has to mean something. Does it refer to material burdens (e.g., one must pay a fine of $X if one insists on compliance with one's own religious conscience)? Or does it refer to the religious substantiality of the burden? The list appears to divide into two groups on this burden question. One one side, the claimant gets to self-declare, and that triggers the strict scrutiny of RFRA. That seems to wildly over-enforce religious freedom. Consider the religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, Title VII, etc. On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Actually, I do not recognize my position under either of Chip's either/or choices. Rather, I would look to the cases, which have dealt with interpreting substantial burden repeatedly. Courts have held in the vast majority of cases that cost and convenience are not substantial. That weighs heavily against the ACA plaintiffs, to the extent they are complaining about having to pay for insurance. Substantial means that the religious practice has become impracticable or severely curtailed. The ACA case creates a new, more extreme, demand, which is not that the religious believer is being forced or prohibited from taking a particular act, beyond purchasing an omnibus health care plan. Rather, it is that the religious believer does not want to pay for a health insurance plan that permits employees potentially to obtain health care with which the employer disagrees. The employee (who, under Title VII or state anti-discrimination law could not be hired or fired based on religious belief, and who has the benefit of doctor/patient confidentiality) may well be fine, on religious grounds, in obtaining the contraception and/or abortion (indeed, their religious beliefs may actually require or encourage such medical care), but the employer's objection is that someone may use a health benefit in a way the religious employer doesn't want it used. Under existing case law, this is an attenuated argument that induces an incidental burden, not a substantial burden, for purposes of free exercise analysis. Moreover, the slippery slope is steep. Jehovah's witnesses and blood transfusion; Scientologists and mental health care; Catholics and evangelicals and palliative care for the terminal, elderly patientetc., etc. I am not persuaded by Mark's distinction between the voucher cases, where private decisions wash government money of its Establishment Clause restrictions, and the ACA situation, where, again, a private actor, is acting in an independent way that cannot be attributed reasonably to the provider of the benefit. Marci On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 11:45 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I’ve been having a hard time understanding too. A “burden” does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being “substantial”) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective “substantial” to require some sort of “material burden,” I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” (though I do not believe that the cases cited for this proposition support the view that this is a necessary condition). One might interpret this statement as a requirement that the plaintiff must be willing to suffer *at least* one of these three kinds of penalties in order for the burden to be substantial, or maybe to suffer at least some sort of penalty period (again provided that the penalty is substantial). It’s difficult for me to see that we would want to test the religious liberty claim in all cases against a willingness to go to prison, for example (Chip writes about a related issue in his “Failure of RFRA” piece, I think). But even if we thought that willingness to pay a fine would be a good test for substantiality (which I’ll admit doesn’t seem unreasonable to me, in some cases), I wonder about how this would work in practice. That is, how would we know that the plaintiff was really willing to pay a fine rather than be forced to do something alleged to violate religious conscience? What would be the proof? I’ll add that I am genuinely confused about the issue of substantiality of the burden, because it does seem to me to require more than something like subjective sincerity, but also to forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. If that is right, then what is left to determine the substantiality of the burden other than the degree
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug--The government in Bowen required the applicant to obtain a social security number to obtain benefits. They did not want to obtain it, because it would sacrifice their child's soul. Looks like forced complicity with evil to me. How does that work under your distinction? I have to say it looks like a distinction without a difference to me. Lyng is certainly relevant re: whether the subjective sense of the burden is relevant. It is not. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 10:42 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Marci, read what you quoted. Read the passages I have boldfaced below. Bowen and Lyng were explicitly about government actions that required nothing of the plaintiffs. Those plaintiffs were not required to take any action at all. The government caused problems for plaintiffs’ religion, but it did not require them to do anything that violated their own understanding of their religion. A lot of people don’t like that distinction, but that’s what it was. The ACA plaintiffs are required to take action that violates their own understanding of their religious obligations. Many arguments remain beyond that point, but Bowen and Lyng do not address those arguments. Bowen and Lyng were cases that did not reach that first step. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 9:44 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Lyng (which explicitly relies on Bowen) is indeed relevan to a substantial burden analysis, because it states that even a potentially disastrous burden is not the sort of burden that supports a finding of a free exercise violation. It supports the view that a subjective view of burden does not establish burden, and that an incidental burden is insufficient. The possibility that an employee who does not share the faith will use, in conjunction with a doctor's advice, contraception and abortion medical services is a classic incidental burden. The employer has not been foreclosed from preaching against contraception and abortion in every conceivable context, and need never purchase it for an employee, and in fact cannot even know if the employee is using it given doctor-patient privilege. (Honestly, as others have implied, if parochial schools are going to rely on the intervening actor theory to avoid an Establishment Clause violation, they have real problems here.) This is from the Lyng syllabus, which I'm including because it is more compact than the full language of the opinion: In Bowen v. Roy, 476 U.S. 693 -- which held that a federal statute requiring States to use Social Security numbers in administering certain welfare programs did not violate Indian religious rights under the Free Exercise Clause -- this Court rejected the same kind of challenge that respondents assert. Just as inRoy, the affected individuals here would not be coerced by the Government's action into violating their religious beliefs; nor would the governmental action penalize the exercise of religious rights by denying religious adherents an equal share of the rights, benefits, and privileges enjoyed by other citizens. Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government. Even assuming that the Government's actions here will virtually destroy the Indians' ability to practice their religion, the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 12:38 pm
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug-- What is wrong, with all due respect, is treating the religious believer's characterization of the act as the legal characterization of it. The religious believer's belief that it is a killing does not make it one for purposes of legal analysis. That was my very simple point. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 10:43 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden One does not have to believe that early abortions kill human beings to recognize the profound significance of performing, assisting, or procuring an abortion to those who believe it is a killing of a human being. If we all took the same view of every issue, we would not need a regime of religious liberty. Religious liberty is a response to disagreement on issues that some people on both sides find non-compromisable. It is never an adequate response to a religious liberty claim to say that the claimant is just wrong in how he views the disputed issue. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 8:16 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden A characterization of abortion as a killing, is a religious assessment, not a medical or constitutional category. A fetus is not a person for constitutional purposes. Even abortion foe Justice Scalia has publicly acknowledged that. Therefore, analyzing the cases as though abortion fits into killing cases is weaker than Doug has conceded. Moreover, in the conscientious objection cases, the religious objection on the part of Quakers is in favor of peaceful resolution of conflict, which is different from an objection to killing per se, and many COs are not objecting to war in general but rather a particular war. There is no justification for treating those who oppose the medical procedure of abortion on religious grounds any differently than any other religious objector to another medical procedure. For all the reasons that Native Americans cannot avoid the social security number requirement in the welfare context, the Amish cannot avoid Social Security taxes (absent an exemption), and Native Americans cannot force the federal government to use its property according to their beliefs, religiously affiliated employers cannot avoid a neutral, generally applicable requirement that medical insurance include the option, that is triggered solely the patient's decision in consultation with her doctor, of reproductive medical care. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ 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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I think Marty's point about alternative payments in lieu of purchasing insurance with the required coverage is an important one. I don't know how this alternative is structured or characterized in the challenged regulations. But as an abstract matter when we are talking about regulations that require religious individuals or institutions to do something that their religion prohibits them to do, we can often resolve the religious liberty issue by granting an exemption from the obligation (here, the requirement to contract for the insurance coverage) while requiring as a condition to that exemption that the religious individual incur costs or duties of less than or equivalent secular value which would be directed toward some public good that is consistent with their faith (here, contributing the cost of the disputed insurance coverage into a fund to be used for some alternative public purpose.) This is the model we use for conscientious objection statutes which require the religious pacifist exempt from military service to perform alternative service consistent with his or her religious obligations. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 5:28 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Thanks for the clarification, Doug. I had missed that particular part of the exchange. On the distinction you suggest, I think that the characterization of the requirement as purchasing a package of services does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to make available to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much less than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is affordable to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a package of services to the employer. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. Of course it's great that the government hasn't reached so far as to prevent him from doing these other things, but that doesn't address whether his particular religious exercise in this case is substantially burdened when he is fined for exercising it. The Amish adherents in Yoder were free to exercise lots of other parts of their religion, but it was a substantial burden when the government fined them for refusing to take the affirmative step of sending their children to school after the 8th grade. So too, it seems to me to be a natural application of Yoder to say it is a substantial burden here for fining these religious adherents for refusing to take the affirmative step of purchasing a plan that violates their religious beliefs. One other note: the language in RFRA's definition about religious exercise not being compelled by or central to a system of religious belief was added to RFRA by RLUIPA in 2000 because prior to that courts frequently short circuited the analysis of RFRA claims by concluding that the particular religious exercise involved in a case was not central to or mandated by the religious claimant's beliefs.There is no doubt that this definition of religious exercise is broad and will encompass lots of what others may think are idiosyncratic beliefs or beliefs that seem to them to be remote. And undoubtedly this means that more cases will be subjected to the strict scrutiny analysis, but RFRA and RLUIPA were written with the intent of giving expanstive protection for religious exercise. Blessings, Derek Derek L. Gaubatz IMB General Counsel (804) 219-1575 (o) Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, October 02, 2012 11:10 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The formal findings in RFRA reference Sherbert and Yoder, but not Thomas. Significant? Should Thomas even apply to artificial persons, like holding companies, corporations, and religious non-profits? Shouldn't they be required to articulate with clarity and precision just how their religious exercise is burdened? I have not yet seen a reply to Bob Ritter's very good question about what work is being done by the word substantial in RFRA. It has to mean something. Does it refer to material burdens (e.g., one must pay a fine of $X if one insists on compliance with one's own religious conscience)? Or does it refer to the religious substantiality of the burden? The list appears to divide into two groups on this burden question. One one side, the claimant gets to self-declare, and that triggers the strict scrutiny of RFRA. That seems to wildly over-enforce religious freedom. Consider the religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, Title VII, etc. On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip On Tue, Oct 2, 2012 at 10:46 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Ordinarily we should accept a person's view of whether the actions required by the state relate closely enough to something prohibited by the person's religion so as to make the person complicit. Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Thomas v. Review Board. Remember that the kind of analysis applied by the Court in Sherbert and Thomas is the kind Congress wanted to bring back under RFRA. Here is a longer excerpt from Thomas. I think it is fair to say that the Court held that what counts is the religious person's view of whether actions make them complicit with evil: When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. (Footnote omitted.] ... In reaching its conclusion, the Indiana court seems to have placed considerable reliance on the facts that Thomas
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
, or from participating in a religious ritual such as communion. Instead, plaintiffs remain free to exercise their religion, by not using contraceptives and by discouraging employees from using contraceptives. Of course it's great that the government hasn't reached so far as to prevent him from doing these other things, but that doesn't address whether his particular religious exercise in this case is substantially burdened when he is fined for exercising it. The Amish adherents in Yoder were free to exercise lots of other parts of their religion, but it was a substantial burden when the government fined them for refusing to take the affirmative step of sending their children to school after the 8th grade. So too, it seems to me to be a natural application of Yoder to say it is a substantial burden here for fining these religious adherents for refusing to take the affirmative step of purchasing a plan that violates their religious beliefs. One other note: the language in RFRA's definition about religious exercise not being compelled by or central to a system of religious belief was added to RFRA by RLUIPA in 2000 because prior to that courts frequently short circuited the analysis of RFRA claims by concluding that the particular religious exercise involved in a case was not central to or mandated by the religious claimant's beliefs.There is no doubt that this definition of religious exercise is broad and will encompass lots of what others may think are idiosyncratic beliefs or beliefs that seem to them to be remote. And undoubtedly this means that more cases will be subjected to the strict scrutiny analysis, but RFRA and RLUIPA were written with the intent of giving expanstive protection for religious exercise. Blessings, Derek Derek L. Gaubatz IMB General Counsel (804) 219-1575 (o) Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, October 02, 2012 11:10 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The formal findings in RFRA reference Sherbert and Yoder, but not Thomas. Significant? Should Thomas even apply to artificial persons, like holding companies, corporations, and religious non-profits? Shouldn't they be required to articulate with clarity and precision just how their religious exercise is burdened? I have not yet seen a reply to Bob Ritter's very good question about what work is being done by the word substantial in RFRA. It has to mean something. Does it refer to material burdens (e.g., one must pay a fine of $X if one insists on compliance with one's own religious conscience)? Or does it refer to the religious substantiality of the burden? The list appears to divide into two groups on this burden question. One one side, the claimant gets to self-declare, and that triggers the strict scrutiny of RFRA. That seems to wildly over-enforce religious freedom. Consider the religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, Title VII, etc. On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip On Tue, Oct 2, 2012 at 10:46 AM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: Ordinarily we should accept a person's view of whether the actions required by the state relate closely enough to something prohibited by the person's religion so as to make the person complicit. Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Thomas v. Review Board. Remember that the kind of analysis applied by the Court in Sherbert and Thomas is the kind Congress wanted to bring back under RFRA. Here is a longer excerpt from Thomas. I think it is fair to say that the Court held that what counts is the religious person's view of whether actions make them complicit with evil: When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material supplier or of a roll foundry. (Footnote omitted.] ... In reaching its conclusion, the Indiana court seems to have placed
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I think Marci's distinction between substantial and incidental burdens goes to the question of the weight of the burden's materiality (penalty for noncompliance with government-imposed norms -- though sometimes financial harm is enough -- see Sherbert). I take her question in this regard to be a friendly addition to my own and to Marc's. I think the either/or choices I attributed to others on the list (self-declaration of burden vs. objective adjudication) go to the question of the religious character and significance of the burden (e.g., degree of complicity in evil from cooperation with the mandate). That's a different question. But I think RFRA is stunningly ambiguous on the issue of whether its focus is materiality, religious character, or some combination of the two. On Tue, Oct 2, 2012 at 12:08 PM, hamilto...@aol.com wrote: Actually, I do not recognize my position under either of Chip's either/or choices. Rather, I would look to the cases, which have dealt with interpreting substantial burden repeatedly. Courts have held in the vast majority of cases that cost and convenience are not substantial. That weighs heavily against the ACA plaintiffs, to the extent they are complaining about having to pay for insurance. Substantial means that the religious practice has become impracticable or severely curtailed. The ACA case creates a new, more extreme, demand, which is not that the religious believer is being forced or prohibited from taking a particular act, beyond purchasing an omnibus health care plan. Rather, it is that the religious believer does not want to pay for a health insurance plan that permits employees potentially to obtain health care with which the employer disagrees. The employee (who, under Title VII or state anti-discrimination law could not be hired or fired based on religious belief, and who has the benefit of doctor/patient confidentiality) may well be fine, on religious grounds, in obtaining the contraception and/or abortion (indeed, their religious beliefs may actually require or encourage such medical care), but the employer's objection is that someone may use a health benefit in a way the religious employer doesn't want it used. Under existing case law, this is an attenuated argument that induces an incidental burden, not a substantial burden, for purposes of free exercise analysis. Moreover, the slippery slope is steep. Jehovah's witnesses and blood transfusion; Scientologists and mental health care; Catholics and evangelicals and palliative care for the terminal, elderly patientetc., etc. I am not persuaded by Mark's distinction between the voucher cases, where private decisions wash government money of its Establishment Clause restrictions, and the ACA situation, where, again, a private actor, is acting in an independent way that cannot be attributed reasonably to the provider of the benefit. Marci On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 11:45 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I’ve been having a hard time understanding too. A “burden” does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being “substantial”) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective “substantial” to require some sort of “material burden,” I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” (though I do not believe that the cases cited for this proposition support the view that this is a necessary condition). One might interpret this statement as a requirement that the plaintiff must be willing to suffer **at least** one of these three kinds of penalties in order for the burden to be substantial, or maybe to suffer at least some sort of penalty period (again provided that the penalty is substantial). It’s difficult for me to see that we would want to test the religious liberty claim in all cases against a willingness to go to prison, for example (Chip writes about a related issue in his “Failure of RFRA” piece, I
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
As for Chip and Bob Ritter's point about the burden being substantial, I think that anytime a plaintiff is forced to do something their religion forbids, that is not just a burden but a substantial burden. I think the Court made this clear by implication in Hernandez. See Hernandez v. Commissioner, 490 U.S. 680, 699 (1989) (We do, however, have doubts whether the alleged burden imposed by the deduction disallowance on the Scientologists' practices is a substantial one. Neither the payment nor the receipt of taxes is forbidden by the Scientology faith generally, and Scientology does not proscribe the payment of taxes in connection with auditing or training sessions specifically.). This is not to say that the word substantial makes no difference. It may be important in other kinds of cases like, say, Braunfeld-cases where the government makes the religious practice more onerous but does not forbid it. (For another example, we could go back to my discussion with Marci about a prison that doesn't force a Jew to eat non-Kosher food, but puts him on a Kosher diet that is significantly worse than that of other inmates.) I think Chip has rightly diagnosed the deep divide between the two groups. I think there are merits and demerits to both sides. But I think the Court has chosen the first position. Subject to the sincerity inquiry, churches do indeed get to self-declare what their religious views are. I know that sounds weird, but wouldn't it be weirder if they didn't? Certainly this broad conception of burden will lead to outcomes like Lee: As the scope of the religious objection grows wider and wider, the government's claim of a compelling interest becomes more and more persuasive. Maybe the Court's adoption of a broad sense of burden in cases like Lee helped lead to Employment Division v. Smith. Gosh knows, it was part of Boerne. See City of Boerne v. Flores, 521 U.S. 507, 535 (1997) (It is a reality of the modern regulatory state that numerous state laws, such as the zoning regulations at issue here, impose a substantial burden on a large class of individuals.) But it seems to me that this is the path we're on. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, October 02, 2012 11:10 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden The formal findings in RFRA reference Sherbert and Yoder, but not Thomas. Significant? Should Thomas even apply to artificial persons, like holding companies, corporations, and religious non-profits? Shouldn't they be required to articulate with clarity and precision just how their religious exercise is burdened? I have not yet seen a reply to Bob Ritter's very good question about what work is being done by the word substantial in RFRA. It has to mean something. Does it refer to material burdens (e.g., one must pay a fine of $X if one insists on compliance with one's own religious conscience)? Or does it refer to the religious substantiality of the burden? The list appears to divide into two groups on this burden question. One one side, the claimant gets to self-declare, and that triggers the strict scrutiny of RFRA. That seems to wildly over-enforce religious freedom. Consider the religiously idiosyncratic and libertarian employer who objects to FLSA, OSHA, Title VII, etc. On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip On Tue, Oct 2, 2012 at 10:46 AM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Ordinarily we should accept a person's view of whether the actions required by the state relate closely enough to something prohibited by the person's religion so as to make the person complicit. Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Thomas v. Review Board. Remember that the kind of analysis applied by the Court in Sherbert and Thomas is the kind Congress wanted to bring back under RFRA. Here is a longer excerpt from Thomas. I think it is fair to say that the Court held that what counts is the religious person's view of whether actions make them complicit with evil: When asked at the hearing to explain what kind of work his religious convictions would permit, Thomas said that he would have no difficulty doing the type of work that he had done at the roll foundry. He testified that he could, in good conscience, engage indirectly in the production of materials that might be used ultimately to fabricate arms -- for example, as an employee of a raw material
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chip-- With respect to RFRA, substantial burden was adopted from the case law. Are you suggesting that it has evolved into a different standard? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 1:02 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Marci's distinction between substantial and incidental burdens goes to the question of the weight of the burden's materiality (penalty for noncompliance with government-imposed norms -- though sometimes financial harm is enough -- see Sherbert). I take her question in this regard to be a friendly addition to my own and to Marc's. I think the either/or choices I attributed to others on the list (self-declaration of burden vs. objective adjudication) go to the question of the religious character and significance of the burden (e.g., degree of complicity in evil from cooperation with the mandate). That's a different question. But I think RFRA is stunningly ambiguous on the issue of whether its focus is materiality, religious character, or some combination of the two. On Tue, Oct 2, 2012 at 12:08 PM, hamilto...@aol.com wrote: Actually, I do not recognize my position under either of Chip's either/or choices. Rather, I would look to the cases, which have dealt with interpreting substantial burden repeatedly. Courts have held in the vast majority of cases that cost and convenience are not substantial. That weighs heavily against the ACA plaintiffs, to the extent they are complaining about having to pay for insurance. Substantial means that the religious practice has become impracticable or severely curtailed. The ACA case creates a new, more extreme, demand, which is not that the religious believer is being forced or prohibited from taking a particular act, beyond purchasing an omnibus health care plan. Rather, it is that the religious believer does not want to pay for a health insurance plan that permits employees potentially to obtain health care with which the employer disagrees. The employee (who, under Title VII or state anti-discrimination law could not be hired or fired based on religious belief, and who has the benefit of doctor/patient confidentiality) may well be fine, on religious grounds, in obtaining the contraception and/or abortion (indeed, their religious beliefs may actually require or encourage such medical care), but the employer's objection is that someone may use a health benefit in a way the religious employer doesn't want it used. Under existing case law, this is an attenuated argument that induces an incidental burden, not a substantial burden, for purposes of free exercise analysis. Moreover, the slippery slope is steep. Jehovah's witnesses and blood transfusion; Scientologists and mental health care; Catholics and evangelicals and palliative care for the terminal, elderly patientetc., etc. I am not persuaded by Mark's distinction between the voucher cases, where private decisions wash government money of its Establishment Clause restrictions, and the ACA situation, where, again, a private actor, is acting in an independent way that cannot be attributed reasonably to the provider of the benefit. Marci On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 11:45 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I’ve been having a hard time understanding too. A “burden” does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being “substantial”) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective “substantial” to require some sort of “material burden,” I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to “forfeit a benefit, pay a fine, or even face criminal prosecution” (though I do
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Derek-- You don't mention, though, that the legislative history of RLUIPA is explicit that substantial burden means what it meant in the free exercise doctrine. You can't use the definition of religious exercise (which I view as reflecting Smith's dictum on the same) to alter the definition of substantial. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.org To: Religionlaw Religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 12:42 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Dear Chip, Thomas is not mentioned in the findings of RFRA, but it’s holding is certainly incorporated into the definition of religious exercise in RFRA (and RLUIPA). In fact, it seems to me that much of the discussion on this list and in the O’Brien case of whether there is a substantial burden in these contraception/abortifacient cases has failed to focus in on RFRA’s definition of religious exercise. Obviously, it is an important threshold issue to identify the precise religious exercise at issue before determining whether there is a substantial burden on that religious exercise. RFRA defines religious exercise (consistent with Thomas) as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5 There are three noteworthy things about this definition. First, like the text of the Free Exercise Clause itself, which does not limit the range or types of religious exercise eligible for protection, the Act's definition makes clear that “any” discrete instance of religious exercise is covered by the Act. Second, not only does RFRA’s definition of “religious exercise” provide that “any” religious exercise is protected, it also makes explicit that this protection is not limited to practices that are compelled by the individual's religion. Thus, religious exercise that some might claim is discretionary on the part of the believer--e.g., a Catholic's desire to pray the rosary, a Muslim's desire to utilize prayer oils during daily prayers, or a Jewish believer's decision to wear a yarmulke--is also protected and may not be substantially burdened. This aversion to adopting a requirement that religious exercise be mandated by a faith in order to be protected flows directly from the Supreme Court's holding in Thomas that “[c]ourts are not arbiters of scriptural interpretation.” To require a court to inquire into whether a particular religious practice is compelled by the believer's faith is to force a court into a role “not within the judicial function and judicial competence,” because it necessitates a judgment as to what a religion requires of its believers. If compulsion were a prerequisite, courts would soon be in the theological thicket as the state would seek to defeat a believer's claim of substantial burden by introducing testimony of another member of the believer's faith who opines that the particular practice is not mandated. Finally, RFRA’s definition of religious exercise also makes explicit that consideration of whether the religious exercise at issue in the case is “central” (or fundamental) to a particular religion is irrelevant. Accordingly, particular acts of religious exercise are protected from being substantially burdened under RFRA, regardless of whether a judge (or government official or law professor or anybody else) feels they are not of sufficient importance to a religion to be worthy of protection. With RFRA’s definition of “religious exercise” in mind, what is the precise religious exercise involved in O’Brien and in other cases challenging the contraception/abortifacient mandate? As I understand it, the religious exercise at issue is that the religious adherent (i.e., the employers in these cases) believes that it morally wrong to purchase a health care plan (in the case of a non-self insured employer) that includes contraceptives/abortifacients or to be forced to pay for contraceptives/abortifacients (in the case of an employer with a self-insured plan) As I understand it, there is no question in O’Brien (or any of the other cases) about the sincerity of this belief or that it is religiously based. Once the focus is placed on the actual religious belief that is being exercised here, the question is then whether the mandate substantially burdens this religious exercise. As I understand the mandate’s operation, it says either you comply with the mandate and pay for a plan (or provide coverage in the case of a self-insured plan) that includes contraceptives/abortifacients or pay a penalty. In other words, if the religious adherents here exercise their beliefs
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
The free exercise case law does not come close to sufficiently fleshing it out (and has internal contradictions), and a general term like substantial burden inevitably must evolve in light of the facts of cases as they arise and are decided. If there had never been a Smith or a RFRA. I expect we would be having exactly the same fight over whether the employer mandate under ACA was a substantial burden under the free exercise clause. On Tue, Oct 2, 2012 at 2:02 PM, hamilto...@aol.com wrote: Chip-- With respect to RFRA, substantial burden was adopted from the case law. Are you suggesting that it has evolved into a different standard? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Ira Lupu icl...@law.gwu.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 1:02 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden I think Marci's distinction between substantial and incidental burdens goes to the question of the weight of the burden's materiality (penalty for noncompliance with government-imposed norms -- though sometimes financial harm is enough -- see Sherbert). I take her question in this regard to be a friendly addition to my own and to Marc's. I think the either/or choices I attributed to others on the list (self-declaration of burden vs. objective adjudication) go to the question of the religious character and significance of the burden (e.g., degree of complicity in evil from cooperation with the mandate). That's a different question. But I think RFRA is stunningly ambiguous on the issue of whether its focus is materiality, religious character, or some combination of the two. On Tue, Oct 2, 2012 at 12:08 PM, hamilto...@aol.com wrote: Actually, I do not recognize my position under either of Chip's either/or choices. Rather, I would look to the cases, which have dealt with interpreting substantial burden repeatedly. Courts have held in the vast majority of cases that cost and convenience are not substantial. That weighs heavily against the ACA plaintiffs, to the extent they are complaining about having to pay for insurance. Substantial means that the religious practice has become impracticable or severely curtailed. The ACA case creates a new, more extreme, demand, which is not that the religious believer is being forced or prohibited from taking a particular act, beyond purchasing an omnibus health care plan. Rather, it is that the religious believer does not want to pay for a health insurance plan that permits employees potentially to obtain health care with which the employer disagrees. The employee (who, under Title VII or state anti-discrimination law could not be hired or fired based on religious belief, and who has the benefit of doctor/patient confidentiality) may well be fine, on religious grounds, in obtaining the contraception and/or abortion (indeed, their religious beliefs may actually require or encourage such medical care), but the employer's objection is that someone may use a health benefit in a way the religious employer doesn't want it used. Under existing case law, this is an attenuated argument that induces an incidental burden, not a substantial burden, for purposes of free exercise analysis. Moreover, the slippery slope is steep. Jehovah's witnesses and blood transfusion; Scientologists and mental health care; Catholics and evangelicals and palliative care for the terminal, elderly patientetc., etc. I am not persuaded by Mark's distinction between the voucher cases, where private decisions wash government money of its Establishment Clause restrictions, and the ACA situation, where, again, a private actor, is acting in an independent way that cannot be attributed reasonably to the provider of the benefit. Marci On the other side, the government lawyers and courts get to second-guess and decide what someone's religion really requires, and what kind of burden on that is presumptively too great to force the claimant to endure. That seems unconstitutional (see Hosanna-Tabor and other decisions on Establishment Clause limits on the state's resolving internal religious questions). Chip Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 11:45 am Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I’ve been having a hard
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug--Are you suggesting that Bowen would have come down differently, under the substantial burden analysis, depending on whether they, as the case started, had to apply for a number, or, as the trial indicated, they had to live with one? Why? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 12:50 pm Subject: FW: Court Rejects Religious LibertyChallenges To ACA Mandate--interpreting substantial burden In Bowen, they discovered at trial that she already had a social security number By the time the case got to the Supreme Court, the claim was that the government could not use that social security number to maintain its records on the child. Plaintiffs said that the government’s use of the number would sap the child’s spirit. In Lyng, the government proposed to make noise that would disrupt religious mediation. Neither case was about regulating the religious believer’s behavior. The ACA cases are about regulating the believer’s behavior. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 12:12 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug--The government in Bowen required the applicant to obtain a social security number to obtain benefits. They did not want to obtain it, because it would sacrifice their child's soul. Looks like forced complicity with evil to me. How does that work under your distinction? I have to say it looks like a distinction without a difference to me. Lyng is certainly relevant re: whether the subjective sense of the burden is relevant. It is not. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ 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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
I admire the way that Marc addresses this issue. Very thoughtful post. There are no easy answers here, as Marc recognizes. Many religious obligations involve material sacrifices by believers. What material loss do I incur if the government forces me work on Yom Kippur? It can't mean that this is not a substantial burden on religious liberty because I would not suffer a material burden if I complied with it. Some accommodations are materially beneficial to the religious individuals that seek them. Sometimes we can test sincerity (and arguably substantiality) to some extent by limiting or eliminating those material benefits. (see my last post) There is no way to test the claimant's willingness to incur to pay a fine or face criminal prosecution other than requiring the claimant to pay the fine or by prosecuting him. That solution has obvious difficulties. We do often indirectly use the temptation of increased benefits. When we pay people overtime to work on Saturday or Sunday, for example, the loss of increased income tests their commitment to observing the Sabbath. If we are talking about laws that require an individual or institution to do something that they claim their religion prohibits them from doing, I don't see any way to move beyond subjective sincerity without crossing the lines that forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. So what do we do. In this kind of a case (where the state allegedly obliges a person to do something their religion prohibits) I ask this question - what doctrinal approach is going to get us the best answer that both protects religious liberty and appropriately respects the countervailing state interests that may justify burdening religious liberty? I think we are more likely to get the right answer when courts look at the burden on the claimant, the importance of the state's interest and the availability of less restrictive alternatives as opposed to allowing some claims to be dismissed on the grounds that they are insufficiently substantial. We can argue about whether an allegedly attenuated burden should be assigned less weight than a more direct burden in adjudicating the case on the merits. But that is different than saying that a necessarily arbitrary ruling about the substantiality of the burden should preclude any consideration of the importance of the state's interest or the availability of less restrictive alternatives. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marc DeGirolami Sent: Tuesday, October 02, 2012 8:44 AM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chip raises a problem I've been having a hard time understanding too. A burden does seem to imply the willingness to suffer to some unspecified degree (rising to the level of being substantial) on behalf of the claimed belief. On the specific question of whether one should interpret the adjective substantial to require some sort of material burden, I believe that this is what the ED of Missouri court means when it says that the claimant must be willing to forfeit a benefit, pay a fine, or even face criminal prosecution (though I do not believe that the cases cited for this proposition support the view that this is a necessary condition). One might interpret this statement as a requirement that the plaintiff must be willing to suffer *at least* one of these three kinds of penalties in order for the burden to be substantial, or maybe to suffer at least some sort of penalty period (again provided that the penalty is substantial). It's difficult for me to see that we would want to test the religious liberty claim in all cases against a willingness to go to prison, for example (Chip writes about a related issue in his Failure of RFRA piece, I think). But even if we thought that willingness to pay a fine would be a good test for substantiality (which I'll admit doesn't seem unreasonable to me, in some cases), I wonder about how this would work in practice. That is, how would we know that the plaintiff was really willing to pay a fine rather than be forced to do something alleged to violate religious conscience? What would be the proof? I'll add that I am genuinely confused about the issue of substantiality of the burden, because it does seem to me to require more than something like subjective sincerity, but also to forbid courts from inquiring into the importance of the belief, or the degree to which the belief has been ratified by other religious adherents. If that is right, then what is left to determine the substantiality of the burden other than the degree to which the claimant is willing to suffer for his or her beliefs? Marc From: religionlaw-boun
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear Marci, If you look back at what I stated below, I was not using the definition of “religious exercise” to alter what “substantial burden” means. Instead, the point is that the Act provides a broad definition of what religious exercise may not be substantially burdened. Therefore, the starting point is to precisely define what the religious exercise at issue is and see whether this religious exercise meet’s the Act’s definition of what may not be substantially burdened. Once the threshold issue is cleared of determining whether the claimant has identified religious exercise protected by the Act, the analysis shifts to determining whether there is a government imposed substantial burden on that religious exercise. I agree that the legislative history does say we should look to pre-Smith conceptions of substantial burden, which is why my analysis below applied Yoder, a pre-Smith case. I’d also add that the proper focus of whether there is a government imposed substantial burden is an objective test that focuses on the action taken by the government, not the subjective feelings of the believer. An objective substantial burden is an action by the government that coerces or tend to inhibit any religious exercise. For example, Yoder makes clear that being fined for engaging in a particular act of religious exercise is objectively a substantial burden regardless of the particular nature of the religious exercise involved (e.g., wearing a yarmulke, sending kids to the public school, or being forced to purchase a product or service contrary to your beliefs). Objectively focusing on the nature of the action taken by the government avoids getting into a quagmire of analyzing the subjective nature about how the claimant feels about the government action. Blessings, Derek From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Derek-- You don't mention, though, that the legislative history of RLUIPA is explicit that substantial burden means what it meant in the free exercise doctrine. You can't use the definition of religious exercise (which I view as reflecting Smith's dictum on the same) to alter the definition of substantial. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Gaubatz, Derek dgaub...@imb.org Dear Chip, Thomas is not mentioned in the findings of RFRA, but it’s holding is certainly incorporated into the definition of religious exercise in RFRA (and RLUIPA). In fact, it seems to me that much of the discussion on this list and in the O’Brien case of whether there is a substantial burden in these contraception/abortifacient cases has failed to focus in on RFRA’s definition of religious exercise. Obviously, it is an important threshold issue to identify the precise religious exercise at issue before determining whether there is a substantial burden on that religious exercise. RFRA defines religious exercise (consistent with Thomas) as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. §2000bb-2(4); 42 U.S.C. §2000cc-5 There are three noteworthy things about this definition. First, like the text of the Free Exercise Clause itself, which does not limit the range or types of religious exercise eligible for protection, the Act's definition makes clear that “any” discrete instance of religious exercise is covered by the Act. Second, not only does RFRA’s definition of “religious exercise” provide that “any” religious exercise is protected, it also makes explicit that this protection is not limited to practices that are compelled by the individual's religion. Thus, religious exercise that some might claim is discretionary on the part of the believer--e.g., a Catholic's desire to pray the rosary, a Muslim's desire to utilize prayer oils during daily prayers, or a Jewish believer's decision to wear a yarmulke--is also protected and may not be substantially burdened. This aversion to adopting a requirement that religious exercise be mandated by a faith in order to be protected flows directly from the Supreme Court's holding in Thomas that “[c]ourts are not arbiters of scriptural interpretation.” To require a court to inquire into whether a particular religious practice is compelled by the believer's faith is to force a court into a role “not within the judicial function and judicial competence,” because it necessitates a judgment as to what a religion requires of its believers. If compulsion were a prerequisite, courts would soon be in the theological thicket as the state would seek to defeat a believer's claim of substantial burden by introducing testimony of another member of the
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
If I’m not mistaken, Marci, a majority of the justices in fact so indicated in Bowen. It was a fractured decision. Two justices thought the issue of whether Roy could be required to provide a number for his daughter was moot (since, as it happened, there already was such a number). Of the seven justices who reached that issue, four would have required a free exercise exemption, and a 5th (Justice Blackmun), indicated that he would have agreed if he had reached the merits. Only three justices joined the plurality opinion’s rejection of both aspects of the free exercise argument. Dan Conkle Daniel O. Conkle Robert H. McKinney Professor of Law Indiana University Maurer School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail con...@indiana.edu From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, October 02, 2012 2:32 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug--Are you suggesting that Bowen would have come down differently, under the substantial burden analysis, depending on whether they, as the case started, had to apply for a number, or, as the trial indicated, they had to live with one? Why? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edumailto:dlayc...@virginia.edu To: 'Law Religion issues for Law Academics' religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Tue, Oct 2, 2012 12:50 pm Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden In Bowen, they discovered at trial that she already had a social security number By the time the case got to the Supreme Court, the claim was that the government could not use that social security number to maintain its records on the child. Plaintiffs said that the government’s use of the number would sap the child’s spirit. In Lyng, the government proposed to make noise that would disrupt religious mediation. Neither case was about regulating the religious believer’s behavior. The ACA cases are about regulating the believer’s behavior. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Tuesday, October 02, 2012 12:12 PM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Doug--The government in Bowen required the applicant to obtain a social security number to obtain benefits. They did not want to obtain it, because it would sacrifice their child's soul. Looks like forced complicity with evil to me. How does that work under your distinction? I have to say it looks like a distinction without a difference to me. Lyng is certainly relevant re: whether the subjective sense of the burden is relevant. It is not. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Doug, Would your view -- expressed in the third paragraph of your post -- be different if the HHS mandated contraceptive coverage, preventive care, etc. actually saved the employer money rather than cost the employer money? Would saving money (i.e., reduced insurance premium) be a substantial burden even if the saving resulted a government mandate to provide health care that the employer found religiously objectionable? Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 22042 703-533-0236 On October 1, 2012 at 8:01 PM Douglas Laycock dlayc...@virginia.edu wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic theologian, who takes the view that the payment of taxes or salaries is wrongful just because the employer knows that they will be put to use for contraception and (in the case of salaries) abortions . . . and many other things, besides, that are wrongful in the eyes of the employer. Thus the question here is whether the state ought to take at face value the assertions of some employers that the moral obligation changes dramatically when the money is used for partial subsidization of an insurance plan, rather than for taxes or salaries. I actually think this is a complex question, as to which I deeply appreciate the many thoughtful views others have contributed to this thread. But whatever the merits of that distinction, the case is a far cry from compelling the employer to kill another human being. On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock dlayc...@virginia.eduwrote: We have a long political tradition of treating objections to killing as a special claim, deserving special protection. We have exempted conscientious objectors in all our wars, even when national existence was on the line, and notwithstanding powerful incentives to dubious conversions or false claims. In the abortion case, the majority believes it is not a killing of a human being; the conscientious objector believes it is. The disagreement over the nature of the killing comes at a slightly different point; I do not claim that the cases are identical. I do believe that there are sound reasons, reflected in our legal and political tradition, to give special deference to what the conscientious objector believes is a refusal to kill another human being. The cases also differ in the weight of the
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Steven Jamar stevenja...@gmail.com Cc: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 10:16 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate On Sep 30, 2012, at 9:49 PM, Douglas Laycock wrote: Steve's second point -- the difference between historic exclusion of Catholics as such and contemporary exclusion of those who adhere too strictly to certain Catholic teachings -- is just Smith's holding about generally applicable laws. The whole point of RFRA was to create statutory protection not restricted to that holding. Agreed. But that doesn't make the history of status-based exclusion controlling for what is and is not a substantial burden, or even particularly relevant. They are different types of exclusion. There are reasons to protect pure-belief-based actions even in the commercial secular marketplace, but that history is not one of them. The ACA and the contraceptive mandate also have exceptions that cover rens of millions of people, so it is far from clear that this is a neutral and generally applicable law. The no-burden holding also saves the court from having to address that issue. I am not overly fond of a number of substantial burden results. But the test is substantial burden, not merely burden, and the term substantial should mean something. I think it should mean something quite substantial and be something that really effectively prohibits the exercise of religion or really makes it so hard to practice one's beliefs that one has a hard time practicing them. I understand others think it should be subjective and controlled by the adherent and that we should take his or her word for the substantiality of the effect. You may believe that OSHA is the work of the devil. But that doesn't relieve you from compliance if you choose to engage in the sort of commerce that OSHA regulates. No one is making you do that sort of work. You have alternatives. Do we really want to say the subjective burden as felt by the adherent gets past the first hurdle and then have courts start expanding compelling state interest to uphold the myriad regulations on commercial establishments? That seems to me to be a greater mischief. Perhaps RFRA should be revisited to address the back-end standard to make the balancing more like EP intermediate scrutiny. Or to consider the substantiality of the burden, the importance of the state's interest, the effect on third parties (e.g. employees in an employer setting), and the effect of ruling one way or the other on all three -- what options are available for the religious adherent employer; what costs are there to society and the government in interests of equality, equity, administration of the laws; what options are there to the employee. But that opens quite another can of worms and gives huge discretionary power to the courts. Is that really what we want here? Or do we really want the unit veto for any and all government regulations short of human sacrifice and child abuse as compelling interests? Are we going to revisit the social security cases and now say they don't need to pay the tax? I think the judge got it right here and that the alternatives are not necessarily good for free exercise in the bigger picture. Steve On Sun, 30 Sep 2012 21:32:10 -0400 Steven Jamar stevenja...@gmail.com wrote: I was quite clearly talking about religious employers in secular commerce. The religious institutions engaging in secular/religious endeavors like religious schools and hospitals are different from someone making and selling widgets. There is also quite a difference
FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Oops. Writing too fast. What I meant to say is that neither Lyng, nor Bowen, nor Lee supports a no-burden holding in the ACA cases. Lyng and Bowen do indeed appear irrelevant. But Lee is not irrelevant; it supports a holding of substantial burden. The Court accepted the Amish claim that payment of social security taxes was forbidden by their faith, and concluded that requiring this payment “interferes with their free exercise rights.” But “not all burdens are unconstitutional. That state may justify a limitation on religious liberty . . .” And it went on to find a compelling interest in collecting taxes, including social security taxes. So in Lee, the Court said that payment of funds to the government, for a stated purpose that is religiously objectionable, is a constitutionally cognizable burden on free exercise. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Dear colleagues, Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the decision’s many flaws -- to the decision we’re discussing, at the “Mirror of Justice” blog: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an exemption-less requirement that the diocese provide insurance coverage for elective abortions. Do those who have been welcoming this decision agree that RFRA would not / should not protect the diocese in such a case? Best, R Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.commailto:hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward. One caveat on the equivalence point raised by Rob and Rick: To the extent the court is rejecting a proximate cooperation with evil theory of substantial burden here, then yes, that same theory would presumably be subject to the same objections if the case involved a diocese and elective abortion coverage. But the diocese would have a much stronger substantial burden argument on a different theory -- one of the institutional autonomy theories that Rick referred to earlier. In particular, assuming the diocese exercises its title VII exemption, and prefers coreligionists in employment, then I'd assume one of its principal functions -- unlike that of the ceramics-processing O'Brien Industrial Company -- is to create and nurture a particular kind of religious community, one in which its employees are expected to advance its Catholic mission, and to adhere to Catholic tenets in their own conduct. The HHS rule would arguably have a significant impact on the ability of the diocese to so shape its community and to ensure that its employees act in accordance with Catholic precepts. In that respect, the diocese is very differently situated for RFRA purposes from the O'Brien Industrial Company, which hires many non-Catholics and that does not endeavor to require its employees to conform their conduct to Catholic precepts. On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, ** ** Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the decision’s many flaws -- to the decision we’re discussing, at the “Mirror of Justice” blog: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html ** ** As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an exemption-less requirement that the diocese provide insurance coverage for elective abortions. Do those who have been welcoming this decision agree that RFRA would not / should not protect the diocese in such a case? ** ** Best, R ** ** Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ** ** 574-631-6981 (w) 574-276-2252 (cell) ** ** SSRN page http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ** ** Blogs: ** ** Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://www.mirrorofjustice.blogs.com/ ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Douglas Laycock *Sent:* Monday, October 01, 2012 10:55 AM *To:* 'Law Religion issues for Law Academics' *Subject:* FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. ** ** And by the way, I think that all three were rightly decided. ** ** Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ** ** *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com *Sent:* Monday, October 01, 2012 8:34 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. ** ** The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is *not*responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? On Mon, Oct 1, 2012 at 2:11 PM, Rick Garnett rgarn...@nd.edu wrote: Dear Marty, ** ** I agree with you that a religious institution (which, I think, should include most of the institution-plaintiffs challenging the preventive-services mandate -- Catholic Charities, EWTN, the University of Notre Dame, etc.) is better positioned to frame the “substantial burden” in terms of its institutional “mission”, though I also think that the better way to handle the objection of, say, the owner of a commercial business is by asking about feasibility (tailoring, alternatives, etc.) and not by asserting (as the court here did) that there is no burden because employees often do things with their salaries to which employers object on moral grounds, etc. (I do agree that, generally speaking, there isn’t a strong “substantial burden on conscience” objection to expenditures by the government from funds raised through taxes, but also think that the problem presented by the mandate, even for commercial employers, is different.)*** * ** ** Also, I’d like to hear more from those who support the court’s reasoning in response to Alan Brownstein’s as-per-usual thoughtful e-mail, in which he expressed concerns about the “no burden here” assertion, given what would seem to be the tension between that assertion and claims that, say, allowing school-voucher recipients to send their kids to Catholic schools burdens the conscience of one who objects to such funding. If this decision were right, then wouldn’t we have a(nother) reason to overrule Flast? ** ** Best, ** ** Rick ** ** Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 ** ** 574-631-6981 (w) 574-276-2252 (cell) ** ** SSRN page http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 ** ** Blogs: ** ** Prawfsblawg http://prawfsblawg.blogs.com/ Mirror of Justice http://www.mirrorofjustice.blogs.com/ ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Monday, October 01, 2012 1:48 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden ** ** Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward. One caveat on the equivalence point raised by Rob and Rick: To the extent the court is rejecting a proximate cooperation with evil theory of substantial burden here, then yes, that same theory would presumably be subject to the same objections if the case involved a diocese and elective abortion coverage. But the diocese would have a much stronger substantial burden argument on a different theory -- one of the institutional autonomy theories that Rick referred to earlier. In particular, assuming the diocese exercises its title VII exemption, and prefers coreligionists in employment, then I'd assume one of its principal functions -- unlike that of the ceramics-processing O'Brien Industrial Company -- is to create and nurture a particular kind
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Imagine an observant Jew wants a kosher meal in prison. The prison doesn't serve kosher food. Our plaintiff says, This burdens my religion. The prison responds, No, it doesn't. You're not responsible for the food we choose to serve in prison. That's a genuinely free and independent choice that we made. It has nothing to do with you. So why is there a substantial burden there? I think it's simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of responsibility. But those notions are what they are, I think. The state can't say, Your theological notions of 'responsibility' are absurd, any more than it can say, Your theological notions about the food God requires you to eat are absurd. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Christopher Lund l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ 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. ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Must the prison supply kosher meat (and build a kosher kitchen) or is it enough that it supplies nutritious vegetarian food, even though other prisoners get meat? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 4:28 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.commailto:hamilto...@aol.com -Original Message- From: Christopher Lund l...@wayne.edumailto:l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu?] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores the law in question, that it would strongly urge its employees not to use contraception, etc.? If we're going to argue -- as many of us have -- that the state's involvement in the student's choice of a religious school is far too attenuated to implicate in any strong manner the conscience rights of the taxpayer whose funds eventually make their way, pursuant to many intervening decisions, to the religious school's coffers, why should we think there is a substantial burden on the employer's obligations of conscience in this case? ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
No. The logic of the decision could be pushed that far in a parallel universe or by faculty like us who may indeed inhabit a parallel universe, but such a case is so easily distinguishable from a commercial business as to be essentially irrelevant. Steve On Oct 1, 2012, at 11:57 AM, Rick Garnett wrote: Dear colleagues, Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the decision’s many flaws -- to the decision we’re discussing, at the “Mirror of Justice” blog: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an exemption-less requirement that the diocese provide insurance coverage for elective abortions. Do those who have been welcoming this decision agree that RFRA would not / should not protect the diocese in such a case? Best, R Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden was to be interpreted according to existing precedents (as of 1993 and 2000). In other words, Lyng, Bowen, and Lee are the governing interpretations for RFRA. Subjective views of burden are not part of the doctrine. It would take the Supreme Court to overturn these decisions to grant a win to the religiously affiliated institutions. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Education: the path from cocky ignorance to miserable uncertainty. Mark Twain ___ 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
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks for your post, Marty. Rick, of course, will have to speak for himself. But I don't believe that the independent choice of parents as to how they will spend education vouchers should end the Establishment Clause inquiry. And I also believe that the government's use of taxes to engage in activities that violate the taxpayer's religious beliefs burden the taxpayer's religious liberty. This doesn't mean that the individual's religious liberty interests should be always be vindicated in these kinds of cases. I support a religion clause jurisprudence that defines harm or burden or infringement fairly broadly so that claims can get on the constitutional playing field. I would assign most of the work in determining whether state action is constitutional to the adjudication of claims - not to a decision on burden that cuts off all other analysis. (I also think that while some burdens may not be sufficient to invoke judicial review standing alone, combined with other religious and equality interests they should be adjudicated on the merits.) With regard to the several factors that Marty lists: To begin with, I would rephrase Marty's basic question this way. Is it really fair for religious liberty purposes to attribute to the employer here the employee's decision to use contraceptives when the employer sincerely believes that G-d prohibits him from facilitating the use of contraceptives in this way? I think the answer is Yes. More specifically, as others have suggested, I don't see how the coverage being compelled by law alters the analysis. The fact that a religious believer is compelled by a law to do hundreds of things that do not violate his faith does not alter the fact that one mandate requires him to do what his religion prohibits. One might argue that a broad law creates so many instances in which religious liberty might be abridged that the government has a strong administrative convenience justification for rejecting accommodations for everyone. But that argument goes to justification, not to burden. As to disclaimers, I'm not persuaded that a disclaimer really resolves concerns about complicity with or facilitating wrongful acts. But let's assume that one of the concerns here has to do with perceptions of complicity by others. There are religious rules that are arguably prophylactic measures. There are rules that are designed to remind people of things they are supposed to do. There may be alternative ways to accomplish these religious goals. The question is whether religious individuals and institutions are permitted to follow the rules they believe are required by their faith to accomplish religious purposes or whether the state gets to require them to violate their beliefs because the state thinks that different means are available and preferable for furthering their religious purposes. For example, one of the justifications for prohibiting Jews from eating chicken and cheese (milk and meat) even though a chicken obviously doesn't produce milk and doesn't really fit into the biblical prohibition is that people might see people eating a chicken and cheese sandwich, not understand that the meat in the sandwich is from a chicken, and begin to believe that it is OK to eat milk with meat. Obviously, there are alternative ways to avoid this misunderstanding. I don't think that states or courts get to dismiss the way that Jewish tradition handles the problem because they think there is a better way to deal with the issue. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 11:52 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could not reasonably be attributed to the employer; and (iv) the employer is free to issue as many disclaimers as it wishes, explaining in no uncertain terms that it thinks contraception is sinful, that it deplores
RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
To Sandy, the “substantial burden” part of this will depend on what the plaintiff believes. If the Jewish prisoner believes that he has a religious obligation to eat Kosher meat, then there will be a “substantial burden” if the prison doesn’t provide Kosher meat. But by having such a broad view of what his religion requires, the prisoner creates other difficulties for himself. A sincerity problem perhaps, and certainly a compelling interest problem. I haven’t read many of these cases, but I have read some. And my sense is that if the prison supplies nutritious vegetarian food, no court would require the prison to build a Kosher kitchen. To Marci, to the extent that the prisoner can only eat something his religion forbids, that’s the clearest form of a substantial burden. That kind of burden is what the Catholic Church claims here. No doubt that there are harder cases. The prison provides some Kosher foods, maybe enough to survive on, but not enough for the kind of diet that other prisoners have. I don’t have firm views about those situations, although I think it’s clear that the “government-requires-what-my-religion-forbids” situation is not the only case of a substantial burden. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Sanford Levinson Sent: Monday, October 01, 2012 4:36 PM To: Law Religion issues for Law Academics Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Must the prison supply kosher meat (and build a kosher kitchen) or is it enough that it supplies nutritious vegetarian food, even though other prisoners get meat? sandy From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 4:28 PM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Chris-- I take it you are arguing that for every religious prisoner with a dietary restriction, all of them can prove substantial burden, but the state may or may not win under RLUIPA based on the state's evidence of compelling interest? Is it a substantial burden where the believer can obtain 50% of the foods he/she seeks? I'm broadening this from the kosher food context, obviously. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Christopher Lund l...@wayne.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 3:39 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Imagine an observant Jew wants a kosher meal in prison. The prison doesn’t serve kosher food. Our plaintiff says, “This burdens my religion.” The prison responds, “No, it doesn’t. You’re not responsible for the food we choose to serve in prison. That’s a genuinely free and independent choice that we made. It has nothing to do with you.” So why is there a “substantial burden” there? I think it’s simple: The state is requiring the religious observer to do something his religion forbids. Maybe Judaism has overly broad notions of “responsibility.” But those notions are what they are, I think. The state can’t say, “Your theological notions of ‘responsibility’ are absurd,” any more than it can say, “Your theological notions about the food God requires you to eat are absurd.” Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu mailto:religionlaw-boun...@lists.ucla.edu? ] On Behalf Of Marty Lederman Sent: Monday, October 01, 2012 2:52 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rick, Alan: Allow me to ask the flip-side question of the one Alan raises: For those of us -- myself included, and you, and most of the members of this list -- who have long argued that the state is not responsible for the genuinely free and independent choices of individuals to use state $$ at a school of their choice, and that the state can surely ameliorate any risk of misperceived endorsement by simply issuing a clear disclaimer of neutrality and nonendorsement (see Pinette), is it really fair to attribute to the employer here the employee's decision to use contraception when (i) the coverage in the insurance plan is compelled by law; (ii) the plan can be used for literally hundreds of different types of medical goods and services, of which contraception is but one; (iii) the decisions whether or not to use the plan for contraception are the result of genuinely free and independent private choice and could
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Steve -- I agree with what you've said. I would point out that you used the term burden, not substantial burden. My point is that I the contraceptive mandate burden's an employer's free exercise if they are opposed to the mandate for religious reasons -- but, importantly, they are not substantially burdened in my view (as I believe Judge Jackson correctly analyzed the burden). The religious burden is de minimis and remote. And there is no economic burden as the mandated coverage is, in the aggregate, is a cost saver. In addition, I believe a fair analogy would be to the Lemon test's excessive entanglement prong. Mere entanglement doesn't constitute an Establishment Clause violation just as a mere burden doesn't establish a Free Exercise Clause violation here. Bob Ritter Jefferson Madison Center for Religious Liberty A Project of the Law Office of Robert V. Ritter Falls Church, VA 703-533-0236 On September 29, 2012 at 11:44 PM Steven Jamar stevenja...@gmail.com wrote: Of course the law burdens religious exercise -- if you take religious exercise to that extreme meaning. If you choose to take it to that extreme, then you cannot be in that line of work or you must pay the penalty for engaging in that kind of work. You can't simply ignore civil law because you don't like it. I didn't like my taxes going to the war in Iraq (and I can think of lots of other things I don't like. And I have moral objections to many things, though fewer things than those I don't like. And I think torture is violates just about every religion out there. And yet I must pay for these things I don't believe in. The social security cases and other cases were properly decided -- following the same economic rules as everyone else when you enter the market place is not a substantial burden on your exercise. If you can't do it, get out of the market and into something where you can follow your religion. Free exercise is not a free pass. Steve On Sep 29, 2012, at 10:52 PM, Walsh, Kevin wrote: The court appears to have recharacterized the allegations in the RFRA claim to make it easier to dismiss. From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Saturday, September 29, 2012 10:30 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate For what it's worth, here are the allegations in the complaint relevant to establishing the alleged burden on religious exercise: Plaintiff O’Brien believes that he cannot pay for and provide coverage for contraceptives, sterilization, abortion or related education and counseling without violating his religious beliefs. Plaintiffs are . . . confronted with choosing between complying with [the HHS mandate] in violation of their religious beliefs, or paying ruinous fines that would have a crippling impact on their ability to survive economically. * * * The Mandate coerces Plaintiffs into complying with its requirements or abandoning integral components of the Plaintiffs’ religiously inspired mission and values. Plaintiffs’ sincerely held religious beliefs prevent them from providing coverage for “all FDA-approved contraceptive methods, sterilization procedures, and patient education and counseling related to such procedures.” The Mandate/Final Rule, by requiring Plaintiffs to provide said coverage, imposes a substantial burden on Plaintiffs’ free exercise of religion by coercing Plaintiffs to choose between conducting their business in accordance with their religious beliefs or paying substantial penalties to the government. On Sat, Sep 29, 2012 at 9:43 PM, Walsh, Kevin kwa...@richmond.edumailto:kwa...@richmond.edu wrote: The court's carelessness with respect to substantial burden prevented it from facing up to the more interesting legal question re: exercise of religion. I say that the court was careless because its analysis depends upon a tendentious characterization of the nature of the religious objection. How does someone run a business with 87 employees if his religion prohibits an outlay of funds that might eventually be used by a third party in a manner inconsistent with one's values? That kind of religious belief would make it difficult to gas up a car and head into work, or even just to stay home and surf the internet. Maybe, instead, the objection has something to do with being forced by the government to pay for a particular kind of policy (rather than pay taxes and have the government purchase the policy instead). In the law, there is such a thing as winning too much. I suspect that is the federal government's view of this sloppy decision. From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
We have a long political tradition of treating objections to killing as a special claim, deserving special protection. We have exempted conscientious objectors in all our wars, even when national existence was on the line, and notwithstanding powerful incentives to dubious conversions or false claims. This protection has not been as broad as objectors would like; it is not immune to limitation when government chooses to assert its compelling interests. But it received very strong protection that grew stronger over time. In the war case, we all agree that draftees may be asked to kill other human beings, but the majority says these are lawful killings, and the minority says they are killings prohibited by God. In the abortion case, the majority believes it is not a killing of a human being; the conscientious objector believes it is. The disagreement over the nature of the killing comes at a slightly different point; I do not claim that the cases are identical. I do believe that there are sound reasons, reflected in our legal and political tradition, to give special deference to what the conscientious objector believes is a refusal to kill another human being. The cases also differ in the weight of the government's interest; it is almost never essential that an abortion be performed or assisted by a particular medical provider. On Mon, 1 Oct 2012 17:16:55 -0400 (EDT) hamilto...@aol.com wrote: In response to Rick, the answer to the question from my perspective is that a religiously affiliated organization (not a church) could be required to provide insurance that includes all possible medically feasible and advisable treatments. That is a classic, neutral, generally applicable law. Obviously, abortion is at times a medically feasible and medically advisable treatment. The employer buys an ombnibus insurance plan, and employers, consistent with medical advice and their own religious and personal views, choose what treatments they obtain. That seems to me constitutional. This is not distinguishable from the objections raised by Quakers having to pay taxes that support war or the Amish having to pay into social security that supports a set of relationships they believe are religiously wrong. I'm glad you asked this question, because it seems to indicate that the argument against the ACA at base appears to be that the belief against abortion is somehow more important than other beliefs. I don't see how the Establishment Clause permits that kind of religious belief prioritizing, or any of the free exercise cases either. No employer should be able to exclude blood transfusions, which are abhorrent to Jehovahs Witnesses, from medical coverage. I haven't heard anyone get behind such an exemption.But those opposing the ACA's reproductive health care provisions seem to be suggesting that somehow abortion opposition is a superior belief that deserves extra constitutional protection. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 1:49 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward. One caveat on the equivalence point raised by Rob and Rick: To the extent the court is rejecting a proximate cooperation with evil theory of substantial burden here, then yes, that same theory would presumably be subject to the same objections if the case involved a diocese and elective abortion coverage. But the diocese would have a much stronger substantial burden argument on a different theory -- one of the institutional autonomy theories that Rick referred to earlier. In particular, assuming the diocese exercises its title VII exemption, and prefers coreligionists in employment, then I'd assume one of its principal functions -- unlike that of the ceramics-processing O'Brien Industrial Company -- is to create and nurture a particular kind of religious community, one in which its employees are expected to advance its Catholic mission, and to adhere to Catholic tenets in their own conduct. The HHS rule would arguably have a significant impact on the ability of the diocese to so shape its community and to ensure that its emplo yees act in accordance with Catholic precepts. In that respect, the diocese is very differently situated for RFRA purposes from the O'Brien Industrial Company, which hires many non-Catholics and that does not endeavor to require its employees to conform their conduct to Catholic precepts. On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett rgarn
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
that this tax money is being used to pay for abortions). But under this approach the employer is not forced to violate his or her religious conscience by agreeing to subsidize the activity. A few employers may believe payment of such a tax violates their religious conscience; if so, they can refuse to pay the tax, and the govt can use its normal coercive means to collect an unpaid tax. Unless the employer believes that armed resistance is required (consider a tax to subsidize slavery), even such an employer’s religious conscience will not be violated when the tax is taken. Note that there is a real imposition on religious freedom when a person is required to agree specifically to subsidize an action that violates the person’s religious conscience. This is analogous to Barnette; you can be required to pay taxes to support a government you consider to be illegitimate, but you cannot be required to agree to support it; you cannot even be required to say that you agree to support it. Brad is right. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, September 29, 2012 8:50 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate I find the court's argument strong here. You pay a salary, you pay FICA, you pay unemployment insurance, you pay pension benefits, you pay vacation time, holidays, and so on. And you provide health insurance benefits. Some of those who have health insurance will use contraceptives. Just like some will use their salaries for gambling, or fornication, or contraception, or alcohol, or illegal drugs, or whatever else the religion of the employer thinks is wrong. Health insurance is a benefit like any other, for purposes of this analysis. Steve On Sep 29, 2012, at 11:11 PM, Brad Pardee wrote: Second, they state, “[T]he contribution to a health care plan has no more than a de minimus impact on the plaintiff’s religious beliefs than paying salaries and other benefits to employees.” The parallel is false, though. There are no limitations on what an employee can do with his salary (apart from things that are illegal on their own, i.e., drugs). A health care plan, however, is not open-ended. It lays out specifically what the plan pays for and how much. Certain procedures are covered. Certain procedures are not. Using certain providers will result in a different deductible or copy than using others. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ http://iipsj.com/SDJ/ A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918) ___ 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.___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
abortion opposition is a superior belief that deserves extra constitutional protection. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marty Lederman lederman.ma...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Mon, Oct 1, 2012 1:49 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Rob's thoughts are well worth reading -- he puts his finger on a bunch of questions that are sure to be central to these cases going forward. One caveat on the equivalence point raised by Rob and Rick: To the extent the court is rejecting a proximate cooperation with evil theory of substantial burden here, then yes, that same theory would presumably be subject to the same objections if the case involved a diocese and elective abortion coverage. But the diocese would have a much stronger substantial burden argument on a different theory -- one of the institutional autonomy theories that Rick referred to earlier. In particular, assuming the diocese exercises its title VII exemption, and prefers coreligionists in employment, then I'd assume one of its principal functions -- unlike that of the ceramics-processing O'Brien Industrial Company -- is to create and nurture a particular kind of religious community, one in which its employees are expected to advance its Catholic mission, and to adhere to Catholic tenets in their own conduct. The HHS rule would arguably have a significant impact on the ability of the diocese to so shape its community and to ensure that its emplo yees act in accordance with Catholic precepts. In that respect, the diocese is very differently situated for RFRA purposes from the O'Brien Industrial Company, which hires many non-Catholics and that does not endeavor to require its employees to conform their conduct to Catholic precepts. On Mon, Oct 1, 2012 at 11:57 AM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, Rob Vischer (St. Thomas – MN) has a reaction – one that identifies well the decision’s many flaws -- to the decision we’re discussing, at the “Mirror of Justice” blog: http://mirrorofjustice.blogs.com/mirrorofjustice/2012/10/forcing-a-church-to-pay-for-its-employees-abortions-would-not-create-a-substantial-burden-on-religio.html As Prof. Vischer reads the decision, its reasoning – i.e., no “substantial burden” -- would apply to a RFRA challenge brought by a Catholic diocese to an exemption-less requirement that the diocese provide insurance coverage for elective abortions. Do those who have been welcoming this decision agree that RFRA would not / should not protect the diocese in such a case? Best, R Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page Blogs: Prawfsblawg Mirror of Justice From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Monday, October 01, 2012 10:55 AM To: 'Law Religion issues for Law Academics' Subject: FW: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Lyng and Bowen involved no regulation of religious behavior. Lee expressly found a burden on free exercise (455 U.S. at 257); the case was decided on compelling interest grounds. None of these cases have any relevance to the burden issue in the ACA cases. And by the way, I think that all three were rightly decided. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, October 01, 2012 8:34 AM To: religionlaw@lists.ucla.edu Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden Religious groups and their supporters have been trying to water down substantial for years. The Alabama rfra doesn't include substantial and neither did the failed North Dakota or Colorado initiatives. One of the reasons the latter failed is overreaching, though it is also attributable to the fact that the Rutherford Institute and others lobbying for rfras have met their match in a number of opposing groups. The court in the ACA case did little more than apply existing law on the interpretation of substantial. Those arguing the case was wrongly decided on this issue are arguing for a new standard. That is contrary to RFRA's (and RLUIPA's) legislative history, which indicate substantial burden
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic theologian, who takes the view that the payment of taxes or salaries is wrongful just because the employer knows that they will be put to use for contraception and (in the case of salaries) abortions . . . and many other things, besides, that are wrongful in the eyes of the employer. Thus the question here is whether the state ought to take at face value the assertions of some employers that the moral obligation changes dramatically when the money is used for partial subsidization of an insurance plan, rather than for taxes or salaries. I actually think this is a complex question, as to which I deeply appreciate the many thoughtful views others have contributed to this thread. But whatever the merits of that distinction, the case is a far cry from compelling the employer to kill another human being. On Mon, Oct 1, 2012 at 7:27 PM, Douglas Laycock dlayc...@virginia.eduwrote: We have a long political tradition of treating objections to killing as a special claim, deserving special protection. We have exempted conscientious objectors in all our wars, even when national existence was on the line, and notwithstanding powerful incentives to dubious conversions or false claims. In the abortion case, the majority believes it is not a killing of a human being; the conscientious objector believes it is. The disagreement over the nature of the killing comes at a slightly different point; I do not claim that the cases are identical. I do believe that there are sound reasons, reflected in our legal and political tradition, to give special deference to what the conscientious objector believes is a refusal to kill another human being. The cases also differ in the weight of the government's interest; it is almost never essential that an abortion be performed or assisted by a particular medical provider. On Mon, 1 Oct 2012 17:16:55 -0400 (EDT) hamilto...@aol.com wrote: I'm glad you asked this question, because it seems to indicate that the argument against the ACA at base appears to be that the belief against abortion is somehow more important than other beliefs. I don't see how the Establishment Clause permits that kind of religious belief prioritizing, or any of the free exercise cases either. Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212)
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
About 45 years ago I left the Catholic Church and don't keep up with its teachings. This being said, it is my understanding that the Catholic Church has not always opposed abortion. If this true, is long tradition true? I also take exception to characterizing the Affordable Care Act and/or the contraceptive mandate as trampling on someone's religion. In a just society, multiple interests have to be weighed. The employer is not the only person in interest. I appears to me that those who disagreed with Judge Jackson's reasoning ignore that (1) employment in a commercial setting is nonreligious and (2) the purpose of the mandate is to provide health care for women, including making it on par with health care for men. Like the judge, I find Smith rather than RFRA controlling. Bob Ritter On September 30, 2012 at 11:56 AM Douglas Laycock dlayc...@virginia.edu wrote: Mark references a long tradition of religious thought about cooperation with evil, and how close is too close -- a tradition that is found in both Christian and Jewish teachings (and probably other faiths too, but I know less about those). This tradition was probably not explained to the court. It may or may not have made any difference. Judges have been attracted to no-burden holdings since RFRA was enacted, I think because it seems to make a hard case go away. They don't have to limit the reach of the government's program, they don't announce that some modest government interest is actually compelling, and they don't have to admit that they are letting the government trample on someone's religion. Intense believers in these cases are often represented by intensely believing attorneys, and they too often treat the burden on religion as obvious, and do a lousy job of developing the issue. I don't know if that happened here, but I suspect that it did, and of course I don't know whether it would have mattered. A substantial secular business as plaintiff likely affected the initial judicial reaction to this case. But the reasoning appears to be equally applicable to religious non-profits controlled by bishops or other religious authorities. On Sat, 29 Sep 2012 22:36:44 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course there is a long history of careful, thoughtful moral analysis that treats the directness of a person's involvement in an action as a key indicator of the person's moral responsibility for it. It is not idiosyncratic at all for the employer to believe that he or she is being coerced into violating religious conscience by being required specifically to subsidize an activity that he or she believes is wrong, and, even worse, by being required to agree specifically to subsidize that activity by entering into a contract providing for it to be subsidized. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
Thanks for the clarification, Doug. I had missed that particular part of the exchange. On the distinction you suggest, I think that the characterization of the requirement as purchasing a package of services does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to *make available* to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much *less* than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is affordable to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a package of services *to the employer*. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) That feels to me quite a bit different from an employer purchasing a package of services. Imagine, for instance, that the Rule instead required employers to pay the same amount of money to a *government* *agency * (rather than to a private insurance company) for the specific purpose of funding a government-provided health insurance plan . . . a plan that works *exactly like the plans in question here*, covering the exact same goods and services, including contraceptive services. In the case of such a Medicare tax -- one that these same employers probably pay currently -- would you describe it as the employer being forced to purchase a package of services? Would Catholic employers claim that it forces them to cooperate with evil in a way that their religion forbids? On Mon, Oct 1, 2012 at 8:01 PM, Douglas Laycock dlayc...@virginia.eduwrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
The beliefs can be serious and strong. But that alone is not sufficient to make the burden substantial. Reminds me of taxpayer standing cases. A federal taxpayer generally doesn't have standing to challenge appropriations because his or her tax dollars cannot be specifically traced to the objection expenditure. De minimis. So no standing. On the other end is Barnette -- where Barnette was compelled to salute the American flag. The contraceptive mandate is somewhere in between. The employer isn't forced to use contraceptives. Isn't even forced to say their use is morally OK. In fact, as Judge Jackson notes, can even suggest to employees not to use them. The line unfortunately must be drawn somewhere on the slippery slope. A lot of what I'm reading on the is blog written by those who oppose Judge Jackson's decision sounds more like disguised whining than sound arguments that the mandate imposes a substantial burden on employers with a religious viewpoint opposed to contraception. Bob Ritter On September 30, 2012 at 2:30 PM Berg, Thomas C. tcb...@stthomas.edu wrote: Marty, The fact that services must be covered in the plan by virtue of legal mandate (are required by law) can't be enough to counter the asserion of a burden, can it--or even be a significant factor in countering it? That would do away with virtually every free exercise claim (I'm only providing facilities for an abortion, or I'm only receiving a blood transfusion, under legal compulsion). You place a lot of weight on the claim that most Catholic theologians say this isn't cooperation with evil, and that no one has articulated a serious argument that distinguishes this and paying salaries or taxes. I don't think those things are true (can one conference show it?): consider, for example, Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's argument here about inclusion of the services in the plan language. You and others may not find those arguments convincing. But rejecting the burden claim based on finding the distinction unconvincing, or on the existence of a great deal of skepticism among [Catholic] theologians, can't be squared--can it?--with Thomas v. Review Board, where the Court said that Thomas's judgment on what work would cooperate with the evil of arms production should be deferred to even though other Jehovah's Witnesses disagreed. Courts are not arbiters of scriptural interpretation; the court can't dismiss the! claim at the threshold because it concludes the asserted belief is not logical, not consistent, etc. Occasionally you seem to be treating this as a question of remoteness of facilitation for burden purposes independent of Catholic moral thought; but more often you return (as I think one must in assessing burden) to asking why claimants believe this is material cooperation with evil, from a Catholic moral perspective. That latter question, it seems to me, falls squarely within the restrictions of Thomas v. Review Board not to second-guess the claimant's understanding of its obligations. Tom - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 11:56 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
So it is just a question of line drawing after all. A. Is it at taxation with taxes paying for things you don't like? B. Or is it paying a salary or wages that will be used by some for things you don't like? C. Or is it providing mandated benefits for things you don't like? D. Or is it paying out of pocket for the thing you don't like? E. Or is it being required to actually do the thing you don't like (administer the pill, do the abortion yourself)? I understand the distinction some want to make, but don't agree with it. The requirement to provide health insurance vitiates the erstwhile agreement. I get that some don't see it that way. But it is not for the individual to decide where to draw the line for substantial burden -- that is a legal standard to be applied by the courts and drawing the line in the ACA case between C and D above is fully defensible on all grounds, philosophical and legal and practical -- though one can curtail the causal link elsewhere for other purposes. Thus the substantial burden is the right place to decide this and many other cases, rather than compelling interest and least restrictive alternative test. As we have seen in the EP cases, least restrictive alternative can be a nearly insurmountable bar since a decent lawyer can always find some alternative that, upon reflection and analysis is less restrictive, and there is no telling what a compelling interest would be in this setting. There simply are no standards for that yet. If the court had ruled that there was a compelling interest here the same people would be attacking the decision on the grounds that ACA's provisions are not a compelling state interest and even if they are, the use of ACA to accomplish the provisions of those benefits is not the least restrictive alternative because less restrictive would be to have an exception granted to religious claimants, even those engaged in ordinary commerce as employers. Steve On Oct 1, 2012, at 8:01 PM, Douglas Laycock wrote: My post on the analogy between exemption from military service and exemption from abortion was addressed to Marci's claim that there should be nothing special about objection to abortion. That is a much broader claim than just the ACA issue. And there are people in the pro-choice movement pushing against conscience protections for medical providers. As to ACA, I do not think there is a burden when an employer pays salary, and the employee then uses the money for purposes the employer considers immoral. The salary payments could have been used for anything. I think the burden on the taxpayer who pays taxes, knowing that the government will use the money for purposes the taxpayer considers immoral, is highly attenuated, and uniformly outweighed by the government's compelling interest in paying taxes. The ACA looks different to those objecting, and plausibly so, because the money is not paid to the employees or to the government. The employer buys a package of services that includes the services the employer believes to be immoral, including the morning-after and week-after pills that the employer believes sometimes kill human beings. The employer contracts for those services and pays for those services, and these employers say they cannot in conscience do those things. On Mon, 1 Oct 2012 19:46:50 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Fortunately, the question here is far, far removed from whether the state can or should require anyone to perform an abortion, or to kill in battle. It is, instead, whether the state can require employers to take some of the money they would have used to pay employee salaries, or taxes -- some of which would foreseeably have been used to pay for contraception (or even abortions, in the case of salaries), anyway -- and instead use it to partially subsidize an insurance plan that, like salaries and taxes, is used to pay for countless goods and services, some of which involve contraception, but only when someone else (the employee) chooses to use it for that purpose. (FWIW, I believe the law does not allow HHS to require plans to cover abortions, and the Rule therefore does not do so.) Doug, a couple of your posts here have suggested that even in the cases of salaries and taxes being used for contraception, there is a substantial burden on the religious exercise of objectors, but one that might be overcome by a compelling government interest. For anyone who starts from that view, the HHS would certainly raise a harder question. But I am not aware of any employer, or Catholic theologian, who takes the view that the payment of taxes or salaries is wrongful just because the employer knows that they will be put to use for contraception and (in the case of salaries) abortions . . . and many other things, besides, that are wrongful in the eyes of the employer. Thus the question
Re: Court Rejects Religious Liberty Challenges To ACA Mandate--interpreting substantial burden
On the law we have, the employer buys the insurance policy. Different policies cover different packages of benefits. These employers feel morally responsible for the package they buy. Of course they are generally entitled to define their own religious beliefs. But in any event, that sense of moral responsibility for the package they buy does not strike me as at all unreasonable. They are contracting with the insurer, and paying the insurer, to assume a contractual obligation to pay for contraception, emergency contraception, and (I think) sterilization. And of course, many of these plans are self-insured. In those cases, the connection is even more direct; the employer is commiting itself to pay for these services whenever asked, and it is paying for them. On Mon, 1 Oct 2012 20:28:06 -0400 Marty Lederman lederman.ma...@gmail.com wrote: Thanks for the clarification, Doug. I had missed that particular part of the exchange. On the distinction you suggest, I think that the characterization of the requirement as purchasing a package of services does not fairly describe what's going on here. Or at the very least, this is nothing like what comes to mind when one hears that phrase -- such as the employer hiring a contractor to paint the walls, install new fixtures, etc. The Rule requires the employer to *make available* to its employees a group health plan. (In fact, not even that -- the employer can instead make a payment to the government, a payment that Robin Wilson suggested at our Conference would typically be much *less* than the cost of the employer's portion of the plan premiums.) The law does not even require the employer to pay premiums into the plan, although that might end up being a practical necessity, since the plan must be one that is affordable to the employees, which in most cases will presumably not include a plan subsidized entirely by employee premiums. So let's assume for sake of argument that as a practical matter the Rule requires employers to pay a certain premium to the insurance company. (I'm putting aside here the serious question of whether the alternative payment to the Fed changes the burden analysis.) That premium does not pay for a package of services *to the employer*. It pays to partly subsidize (in part) an enormously wide range of goods and services -- virtually any related to health -- that will be used only if and when the employees need them and choose to use them. (And even then, the employer will never know which services were used.) That feels to me quite a bit different from an employer purchasing a package of services. Imagine, for instance, that the Rule instead required employers to pay the same amount of money to a *government* *agency * (rather than to a private insurance company) for the specific purpose of funding a government-provided health insurance plan . . . a plan that works *exactly like the plans in question here*, covering the exact same goods and services, including contraceptive services. In the case of such a Medicare tax -- one that these same employers probably pay currently -- would you describe it as the employer being forced to purchase a package of services? Would Catholic employers claim that it forces them to cooperate with evil in a way that their religion forbids? Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate
I appreciate the analysis, Mark. But don't agree that every religion gets to decide where to draw the line on responsibility for remote effects of its actions any more than I get to draw the line on proximate cause because I view it differently from Anderson and Cardozo. I don't have to agree that there is a difference between my knowing that my taxes will be spent on something and my being required to act to provide benefits to someone to do something. The agreement is the same in both cases--required to do something with which one disagrees. The employer buying insurance is no more agreeing to the terms of the insurance contract than to medicare funding abortion with taxes. It is imposed in the same way. Or can so be seen by the government without a right of an employer to avoid its civic responsibilities as a participant in society. Free exercise does not mean license to drop out, to not conform to civil law. The analogous claim to exemption from providing health insurance by a religion is that of a religion claiming a right to conduct human sacrifices -- or where is the principled difference? Both are prohibited from doing something that they believe in. In both cases the civil society has decreed that such action (not providing health benefits; not killing people) is out of bounds. Just as this analogy has its weaknesses, so does the chain created by Mark. Both can be distinguished (as Mark points out in his post). But the distinction is just as convincing or not convincing -- depending on the views of the listener of what the proper scope of the right to be a unit veto on government policy is. Some employers don't like unions and think it is against their religion to bargain collectively. Some employers think it is their right to use resources in wasteful ways that damage the environment. Some employers think that working conditions with respect to safety are improper intrusions. Some employers think they should be able to discriminate on the basis of race. Some employers think they should be able to discriminate on the basis of gender. Some think they should be able to discriminate on the basis of religion. And some of those employers who think those ways cloak their beliefs in religion. Should those with the religious cloak get treated like it is a Potterish cloak of invisibility through which civil society is not allowed to see while others must be exposed to full scrutiny and the full force of civil regulation? In most instances, no. Employers are bound by the same rules whether religious or not, unless there is really a substantial burden. No one is making the employer get an abortion (or the employer's decision makers, assuming it is a corporation). Or do we push the idea that a corporation is a person so far as to make no distinctions at all, even though a corporation cannot really have an abortion? We make exceptions for religious entities, quite properly, even corporate religious entities. But requiring them to provide health benefits is too remote on the causation trail to be a substantial burden. Indeed, the whole argument of being forced to facilitate something as a violation of religion is problematic and should be used with great care. It has no logical or clear ending point. Finally, yes, Mark, I think the employer could indeed be required to pay the clinic directly without it being a substantial burden. Reverse your argument and the point becomes clear. The employer is not doing the act, is not agreeing to do the act, and is doing nothing but funding something the law requires the employer to fund. And paying money for something is not the moral equivalent of doing the thing, especially when that thing you are paying money for is something you are required to do from the outside. If I willingly hire a doctor to pay for an abortion for another, I am indeed not able to wash my hands of responsibility for the action. Indeed, it is my willingness that made the action possible (let's say). But if I am required to do so, then my responsibility is far more attenuated. If I believe in that thing strongly enough, then I should not be in business. And it is OK for society to decide where to draw the line. Steve On Sep 30, 2012, at 1:36 AM, Scarberry, Mark wrote: So suppose the law specifically required the employer to pay directly to a clinic its charges for an employee’s abortion. The employee has an abortion at a clinic, tells the clinic to send the bill to the employer, and the employer then must pay the bill on pain of fines that will put the employer out of business. The employer is a practicing Catholic who follows the Church’s teachings. Is this a substantial burden on the employer’s exercise of religion? Will anyone argue that this is not? Now what if the law is changed to require the employer to buy insurance for employees that specifically and only covers abortion procedures?
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Mark references a long tradition of religious thought about cooperation with evil, and how close is too close -- a tradition that is found in both Christian and Jewish teachings (and probably other faiths too, but I know less about those). This tradition was probably not explained to the court. It may or may not have made any difference. Judges have been attracted to no-burden holdings since RFRA was enacted, I think because it seems to make a hard case go away. They don't have to limit the reach of the government's program, they don't announce that some modest government interest is actually compelling, and they don't have to admit that they are letting the government trample on someone's religion. Intense believers in these cases are often represented by intensely believing attorneys, and they too often treat the burden on religion as obvious, and do a lousy job of developing the issue. I don't know if that happened here, but I suspect that it did, and of course I don't know whether it would have mattered. A substantial secular business as plaintiff likely affected the initial judicial reaction to this case. But the reasoning appears to be equally applicable to religious non-profits controlled by bishops or other religious authorities. On Sat, 29 Sep 2012 22:36:44 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course there is a long history of careful, thoughtful moral analysis that treats the directness of a person's involvement in an action as a key indicator of the person's moral responsibility for it. It is not idiosyncratic at all for the employer to believe that he or she is being coerced into violating religious conscience by being required specifically to subsidize an activity that he or she believes is wrong, and, even worse, by being required to agree specifically to subsidize that activity by entering into a contract providing for it to be subsidized. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate
My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.comwrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue of cooperation with evil, thanks. Mark S.: You appear to place a good deal of stress on the fact that contraception is specifically mentioned in the health-insurance plans in question, whereas of course it is not specifically mentioned in the laws requiring employers to pay taxes and salaries, even though everyone knows that such taxes and salaries will be used in part to pay for contraception. What difference does that specification make from a Catholic moral perspective? To the extent you're suggesting that the inclusion of the words contraceptive services in the insurance plan might be understood by some observers to suggest the employer's own *endorsement * of contraception, I think that is unlikely: After all, who reasonably thinks that any employer approves of all the myriad health-care services included in a health-insurance plan? But in any event, an employer concerned about the prospect of such mistakenly attributed endorsement can tell its employees in no uncertain terms that the inclusion of contraception in the plan is required by law, and that the employer is morally opposed to such services and specifically discourages their use. On Sun, Sep 30, 2012 at 11:56 AM, Douglas Laycock dlayc...@virginia.eduwrote: Mark references a long tradition of religious thought about cooperation with evil, and how close is too close -- a tradition that is found in both Christian and Jewish teachings (and probably other faiths too, but I know less about those). This tradition was probably not explained to the court. It may or may not have made any difference. Judges have been attracted to no-burden holdings since RFRA was enacted, I think because it seems to make a hard case go away. They don't have to limit the reach of the government's program, they don't announce that some modest government interest is actually compelling, and they don't have to admit that they are letting the government trample on someone's religion. Intense believers in these cases are often represented by intensely believing attorneys, and they too often treat the burden on religion as obvious, and do a lousy job of developing the issue. I don't know if that happened here, but I suspect that it did, and of course I don't know whether it would have mattered. A substantial secular business as plaintiff likely affected the initial judicial reaction to this case. But the reasoning appears to be equally applicable to religious non-profits controlled by bishops or other religious authorities. On Sat, 29 Sep 2012 22:36:44 -0700 Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: Of course there is a long history of careful, thoughtful moral analysis that treats the directness of a person's involvement in an action as a key indicator of the person's moral responsibility for it. It is not idiosyncratic at all for the employer to believe
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
I'm not sure why the existence of a contract would fundamentally alter the religious obligation question. But even if it did, the employer is not required to enter into a contract to provide contraception. It is required to offer its employees access to a health-insurance plan. To be sure, that obligation might, as a practical matter, mean that an employer might have to enter into a contract with an insurance company . . . but that contract would typically not mention contraception at all, let alone include a promise by the *employer* to provide reimbursement for contraception. The employer merely promises the insurance company that it will offer participation in the group plan to its employees, and perhaps also promises the insurance company that it will pick up a percentage of the premiums (not tied to whether any or all employees use contraception). On Sun, Sep 30, 2012 at 1:10 PM, Scarberry, Mark mark.scarbe...@pepperdine.edu wrote: A very quick comment as I’m running out the door. There is a difference between a law that takes money from a person to pay for something and a law that requires the person to enter into a contract for provision of that thing. Imagine a Quaker being required to enter into contracts with gun dealers for provision of guns to his or her employees. Beyond the question of directness, a contract is an agreement; contract is about assent. ** ** Mark ** ** *From:* Marty Lederman [mailto:lederman.ma...@gmail.com] *Sent:* Sunday, September 30, 2012 9:53 AM *To:* Law Religion issues for Law Academics *Cc:* Scarberry, Mark; M Cathleen Kaveny; Lisa Cahill; lang...@georgetown.edu; Patrick J. Deneen; Tracy Fessenden; Eduardo Moises Penalver; John Mikhail; David Luban; Amy Uelmen *Subject:* Re: Court Rejects Religious Liberty Challenges To ACA Mandate** ** ** ** For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue of cooperation with evil, thanks. Mark S.: You appear to place a good deal of stress on the fact that contraception is specifically mentioned in the health-insurance plans in question, whereas of course it is not specifically mentioned in the laws requiring employers to pay taxes and salaries, even though everyone knows that such taxes and salaries will be used in part to pay for contraception. What difference does that specification make from a Catholic moral perspective? To the extent you're suggesting that the inclusion of the words contraceptive services in the insurance plan might be understood by some observers to suggest the employer's own *endorsement * of contraception, I think that is unlikely: After all, who reasonably thinks that any employer approves of all the myriad health-care services included in a health-insurance plan? But in any event, an employer concerned about the prospect of such mistakenly attributed endorsement can tell its employees in no uncertain terms that the inclusion of contraception in the plan is required by law, and that the employer is morally opposed to such services and specifically discourages their use. On Sun, Sep 30, 2012 at 11:56 AM, Douglas Laycock dlayc...@virginia.edu wrote
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
I wonder what sort of evidence Marty is looking for. What arguments qualify as serious arguments? And serious for whom? A serious argument is not necessarily an argument that one finds persuasive, though that might be the standard. It could instead be an argument that one disagrees with but that one finds plausible. Or perhaps not outrageous. Or is it instead one which the religious claimant takes seriously, even if the court does not? How should one measure the standard for seriousness? The standard that RFRA sets is not whether a court believes that the argument raised by the objecting religious claimant is serious. It is whether the claimant has alleged a substantial burden. Alleging a substantial burden does not require that the court gauge the seriousness of the objector, or his or her objection, or the degree to which the argument has achieved theological consensus, or its importance or centrality within the overarching system of belief. It does not demand the assent of a selection of theologians. After all, other theologians, at other conferences, surely would disagree with the conclusions of the theologians at Marty's conference, but I take it that their feelings are also not the gauge by which we measure whether a burden is substantial. One possibility is to demand some sort of pain threshold, as the Missouri court intimates, going so far as to suggest (in what I believe is a misreading of Wisconsin v. Yoder) that suffering a substantial burden may even require a willingness to suffer criminal prosecution. Putting aside the objection that there is of course a difference between a necessary condition and a sufficient condition, would the argument become a serious argument if the owner of the company would prefer to be prosecuted rather than to comply? Or to prefer to pay a fine? Or does the seriousness of the argument not depend at all on the degree of suffering that the claimant is willing to endure? Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue of cooperation with evil, thanks. Mark S.: You appear to place a good deal of stress on the fact that contraception is specifically mentioned in the health-insurance plans in question, whereas of course it is not specifically mentioned in the laws requiring employers to pay taxes and salaries, even though everyone knows that such taxes and salaries will be used in part to pay for contraception. What difference does that specification make from a Catholic moral perspective? To the extent you're suggesting that the inclusion of the words contraceptive services in the insurance plan might be understood
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
The references to Barnett and Yoder are misplaced. This case is closer to Bowen, Lee, and Lyng than to either of those cases. In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the burden found to be insufficient in those cases is direct rather than indirect. The notion that courts don't find substantial burden, because they are rooting for the government, which is Doug's explanation, is insupportable. Substantial burden is a legal term of art, not a measure of how the believer feels about the burden. The burden here is incidental to their religious beliefs, not direct or substantial. But let's look at this issue from a broader perspective. Do those favoring the employee here favor the following arguments as well? Jehovahs Witness business owner should not have to pay for coverage of blood transfusions Scientology business owner should not have to pay for coverage of mental health benefits LDS business owner should not have to pay for coverage for treatments that include caffeine Evangelical or Catholic business owner should not have to pay for coverage of MS treatments derived from embryonic stem cell research There is no principled way to distinguish these demands from the demands made in this case. I also would point out that Title VII forbids business owners from discriminating on the basis of religion. Granting the business owner the right to tailor medical care to his or her religious beliefs strikes me as an end run around that principle. The work place is supposed to be neutral as to religion. When the employer can tailor benefits to fit religious viewpoint, he or she is gerrymandering the employment market so that conservative Catholics are going to be more likely to want to work for conservative Catholics and non-Catholics are going to be more inclined to avoid conservative Catholic employers. Can businesses create an employment universe where their owners impose their religious beliefs on the terms of employment consistent with Title VII? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 1:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate I wonder what sort of evidence Marty is looking for. What arguments qualify as “serious” arguments? And “serious” for whom? A “serious” argument is not necessarily an argument that one finds persuasive, though that might be the standard. It could instead be an argument that one disagrees with but that one finds plausible. Or perhaps not outrageous. Or is it instead one which the religious claimant takes “seriously,” even if the court does not? How should one measure the standard for seriousness? The standard that RFRA sets is not whether a court believes that the argument raised by the objecting religious claimant is “serious.” It is whether the claimant has alleged a substantial burden. Alleging a substantial burden does not require that the court gauge the seriousness of the objector, or his or her objection, or the degree to which the argument has achieved theological consensus, or its importance or centrality within the overarching system of belief. It does not demand the assent of a selection of theologians. After all, other theologians, at other conferences, surely would disagree with the conclusions of the theologians at Marty’s conference, but I take it that their feelings are also not the gauge by which we measure whether a burden is substantial. One possibility is to demand some sort of pain threshold, as the Missouri court intimates, going so far as to suggest (in what I believe is a misreading of Wisconsin v. Yoder) that suffering a substantial burden may even require a willingness to suffer criminal prosecution. Putting aside the objection that there is of course a difference between a necessary condition and a sufficient condition, would the argument become a “serious” argument if the owner of the company would prefer to be prosecuted rather than to comply? Or to prefer to pay a fine? Or does the “seriousness” of the argument not depend at all on the degree of suffering that the claimant is willing to endure? Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.com wrote
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
Marty, The fact that services must be covered in the plan by virtue of legal mandate (are required by law) can't be enough to counter the asserion of a burden, can it--or even be a significant factor in countering it? That would do away with virtually every free exercise claim (I'm only providing facilities for an abortion, or I'm only receiving a blood transfusion, under legal compulsion). You place a lot of weight on the claim that most Catholic theologians say this isn't cooperation with evil, and that no one has articulated a serious argument that distinguishes this and paying salaries or taxes. I don't think those things are true (can one conference show it?): consider, for example, Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's argument here about inclusion of the services in the plan language. You and others may not find those arguments convincing. But rejecting the burden claim based on finding the distinction unconvincing, or on the existence of a great deal of skepticism among [Catholic] theologians, can't be squared--can it?--with Thomas v. Review Board, where the Court said that Thomas's judgment on what work would cooperate with the evil of arms production should be deferred to even though other Jehovah's Witnesses disagreed. Courts are not arbiters of scriptural interpretation; the court can't dismiss the! claim at the threshold because it concludes the asserted belief is not logical, not consistent, etc. Occasionally you seem to be treating this as a question of remoteness of facilitation for burden purposes independent of Catholic moral thought; but more often you return (as I think one must in assessing burden) to asking why claimants believe this is material cooperation with evil, from a Catholic moral perspective. That latter question, it seems to me, falls squarely within the restrictions of Thomas v. Review Board not to second-guess the claimant's understanding of its obligations. Tom - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 11:56 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue of cooperation with evil, thanks. Mark S
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
We've talked about this before a bit on the listserv, and I don't want to rehash old arguments-although I think I agree with Eugene Volokh's comments when Marty raised this issue earlier, http://lists.ucla.edu/pipermail/religionlaw/2012-February/025600.html. But let's assume for the moment that Marty is right, because it raises another issue. So let's stipulate that Catholic Church's traditional doctrine of cooperation-with-evil actually doesn't forbid this. The Catholic Bishops' position is entirely new. It's not a mere application of the church's old cooperation-with-evil doctrine. To help us imagine this, let's say the Church issues the following statement: For a long time, as you all know, we have found abortion immoral. But this new Health Care Act has brought the issue to prominence and crystallized it for us. We have had reason to consider more deeply certain particular issues. And we decide today that abortion is so grievously sinful that we must change our position on cooperation-with-evil accordingly. We today expand the doctrine to apply in this situation. We will work out the theological details later; maybe a wholesale revision of the doctrine of cooperation-with-evil is in order. But we are convinced that the Health Care Act will cause us to violate God's will. That is what matters; the doctrinal details can be worked out later. It seems to me that this is okay, that churches can change their theologies, and that they can choose to do theology by adjudication rather than rulemaking. Is there a reason why this should be wrong? Is it necessarily insincere? It seems to me to be pretty consistent with the way human beings reason generally. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue of cooperation with evil, thanks. Mark S.: You appear to place a good deal of stress on the fact that contraception is specifically mentioned in the health-insurance plans in question, whereas of course it is not specifically mentioned in the laws requiring employers to pay taxes and salaries, even though everyone knows that such taxes and salaries will be used in part to pay for contraception. What difference does that specification make from a Catholic moral perspective? To the extent you're suggesting that the inclusion of the words contraceptive services in the insurance plan might be understood by some observers to suggest the employer's own endorsement of contraception, I think that is unlikely: After all, who reasonably thinks that any employer approves of all the myriad health-care services included in a health-insurance plan? But in any event, an employer concerned about the prospect of such mistakenly
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
Colleagues, I think it needs to be recalled that the cooperation with evil / violation of conscience issue is not, in the context of the RFRA and other arguments against the HHS mandate, the whole story. Religious freedom, both as a moral matter and as a legal one, can be burdened, in ways that call for justification, by laws that do not command (what the objector regards as ) immoral acts. Even if, for example, Marty were right that no serious cooperation-with-evil argument has been or could be advanced by, say, Notre Dame, it could still be (and, I think, clearly is) the case that the mandate burdens, say, Notre Dame's legally protected religious freedom rights Best, Rick (Sorry for the iPhone). Sent from my iPhone On Sep 30, 2012, at 2:39 PM, Christopher Lund l...@wayne.edumailto:l...@wayne.edu wrote: We’ve talked about this before a bit on the listserv, and I don’t want to rehash old arguments—although I think I agree with Eugene Volokh’s comments when Marty raised this issue earlier, http://lists.ucla.edu/pipermail/religionlaw/2012-February/025600.html. But let’s assume for the moment that Marty is right, because it raises another issue. So let’s stipulate that Catholic Church’s traditional doctrine of cooperation-with-evil actually doesn’t forbid this. The Catholic Bishops’ position is entirely new. It’s not a mere application of the church’s old cooperation-with-evil doctrine. To help us imagine this, let’s say the Church issues the following statement: For a long time, as you all know, we have found abortion immoral. But this new Health Care Act has brought the issue to prominence and crystallized it for us. We have had reason to consider more deeply certain particular issues. And we decide today that abortion is so grievously sinful that we must change our position on cooperation-with-evil accordingly. We today expand the doctrine to apply in this situation. We will work out the theological details later; maybe a wholesale revision of the doctrine of cooperation-with-evil is in order. But we are convinced that the Health Care Act will cause us to violate God’s will. That is what matters; the doctrinal details can be worked out later. It seems to me that this is okay, that churches can change their theologies, and that they can choose to do theology by adjudication rather than rulemaking. Is there a reason why this should be wrong? Is it necessarily insincere? It seems to me to be pretty consistent with the way human beings reason generally. Best, Chris From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Sunday, September 30, 2012 12:57 PM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule that compliance would result in a violation of religious obligations on account of such cooperation. That doesn't mean there is no such argument out there, of course. But I think it helps to explain in part why plaintiffs in most of these cases have thus far not articulated a theory of substantial burden based on cooperation-with-evil, and why some courts are so skeptical of the allegation of a substantial burden -- namely, that such arguments appear to prove far too much w/r/t an employer who does not raise a similar objection to the inevitable use of its salary payments and taxes (via the intervention of genuinely independent choice on the part of the state or other private parties) for numerous forms of conduct that the employer deems to be wrongful. Doug (and others): I would be extremely grateful for any citations to Jewish or other non-Catholic treatments of this issue
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
With genuine respect to Tom, I don't think that one can really generalize from Thomas. Burger did say what Tom says he said, but it simply can't be the case that the First Amendment allows highly idiosycratic religious believers effectively to torpedo important programs, especially when there is so much incentive to engage in strategic misrepresentation and where, unlike the CO cases, the dissidents apparently need do little or nothing more than assert their belief. And, I confess, I'm just not impressed by the phenomenological differences with the pacifist taxpayer, though as a lawyer I know how to construct the formal distinction. Sandy - Original Message - From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun Sep 30 13:30:07 2012 Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate Marty, The fact that services must be covered in the plan by virtue of legal mandate (are required by law) can't be enough to counter the asserion of a burden, can it--or even be a significant factor in countering it? That would do away with virtually every free exercise claim (I'm only providing facilities for an abortion, or I'm only receiving a blood transfusion, under legal compulsion). You place a lot of weight on the claim that most Catholic theologians say this isn't cooperation with evil, and that no one has articulated a serious argument that distinguishes this and paying salaries or taxes. I don't think those things are true (can one conference show it?): consider, for example, Robbie George and Sharif Girgis's exchange with you a few months ago, or Mark's argument here about inclusion of the services in the plan language. You and others may not find those arguments convincing. But rejecting the burden claim based on finding the distinction unconvincing, or on the existence of a great deal of skepticism among [Catholic] theologians, can't be squared--can it?--with Thomas v. Review Board, where the Court said that Thomas's judgment on what work would cooperate with the evil of arms production should be deferred to even though other Jehovah's Witnesses disagreed. Courts are not arbiters of scriptural interpretation; the court can't dismiss the! claim at the threshold because it concludes the asserted belief is not logical, not consistent, etc. Occasionally you seem to be treating this as a question of remoteness of facilitation for burden purposes independent of Catholic moral thought; but more often you return (as I think one must in assessing burden) to asking why claimants believe this is material cooperation with evil, from a Catholic moral perspective. That latter question, it seems to me, falls squarely within the restrictions of Thomas v. Review Board not to second-guess the claimant's understanding of its obligations. Tom - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.comhttp://www.mirrorofjustice.blogs.com/ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 11:56 AM To: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My post bounced, apparently because of the number of recipients! Resending without so many cc's. Sorry for any duplicate receipts. On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: For what it's worth, at our Georgetown Conference on this issue last week (a video of which should be posted soon), there appeared to be a great deal of skepticism among the Catholic theologians and other scholars present (some of whom I am copying here, along with some others at the conference) that where an employer provides employees with access to a health-insurance plan on compulsion of law; the services in question are part of the plan virtue of legal mandate; and the use of the plan to pay for any particular heath care service is entirely within the discretion of the employee and her physician, the employer does not thereby engage in material cooperation with evil just because some employees might choose to use the plan (unbeknownst to the employer) to subsidize the use of contraception. I am hardly an expert in such questions of Catholic doctrine; but I, for one, have yet to see any serious argument from those objecting to the Rule
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
My explanation was not that the judges are rooting for the government, although sometimes they are. My explanation was that a finding of no burden makes hard cases go away. These cases involve direct regulation of religiously motivated behavior. The Court's point in Bowen and Lyng was that there was no regulation of the plaintiff's behavior at all. So the direct/indirect point has no purchase here. It is not at all clear to me that large commercial business should win these cases. That is partly because of government interests of the sort marci mentions, and partly because the connection to religious exercise becomes increasingly attenuated as the business grows, and especially as the number of owners increases. But religious institutions should win these cases, and probably very small businesses that are personal extensions of the individual owner. On Sun, 30 Sep 2012 14:26:07 -0400 (EDT) hamilto...@aol.com wrote: The references to Barnett and Yoder are misplaced. This case is closer to Bowen, Lee, and Lyng than to either of those cases. In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the burden found to be insufficient in those cases is direct rather than indirect. The notion that courts don't find substantial burden, because they are rooting for the government, which is Doug's explanation, is insupportable. Substantial burden is a legal term of art, not a measure of how the believer feels about the burden. The burden here is incidental to their religious beliefs, not direct or substantial. But let's look at this issue from a broader perspective. Do those favoring the employee here favor the following arguments as well? Jehovahs Witness business owner should not have to pay for coverage of blood transfusions Scientology business owner should not have to pay for coverage of mental health benefits LDS business owner should not have to pay for coverage for treatments that include caffeine Evangelical or Catholic business owner should not have to pay for coverage of MS treatments derived from embryonic stem cell research There is no principled way to distinguish these demands from the demands made in this case. I also would point out that Title VII forbids business owners from discriminating on the basis of religion. Granting the business owner the right to tailor medical care to his or her religious beliefs strikes me as an end run around that principle. The work place is supposed to be neutral as to religion. When the employer can tailor benefits to fit religious viewpoint, he or she is gerrymandering the employment market so that conservative Catholics are going to be more likely to want to work for conservative Catholics and non-Catholics are going to be more inclined to avoid conservative Catholic employers. Can businesses create an employment universe where their owners impose their religious beliefs on the terms of employment consistent with Title VII? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Marc DeGirolami marc.degirol...@stjohns.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 1:38 pm Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate I wonder what sort of evidence Marty is looking for. What arguments qualify as “serious” arguments? And “serious” for whom? A “serious” argument is not necessarily an argument that one finds persuasive, though that might be the standard. It could instead be an argument that one disagrees with but that one finds plausible. Or perhaps not outrageous. Or is it instead one which the religious claimant takes “seriously,” even if the court does not? How should one measure the standard for seriousness? The standard that RFRA sets is not whether a court believes that the argument raised by the objecting religious claimant is “serious.” It is whether the claimant has alleged a substantial burden. Alleging a substantial burden does not require that the court gauge the seriousness of the objector, or his or her objection, or the degree to which the argument has achieved theological consensus, or its importance or centrality within the overarching system of belief. It does not demand the assent of a selection of theologians. After all, other theologians, at other conferences, surely would disagree with the conclusions of the theologians at Marty’s conference, but I take it that their feelings are also not the gauge by which we measure whether a burden is substantial. One possibility is to demand some sort of pain threshold, as the Missouri court intimates, going so far as to suggest (in what I believe is a misreading of Wisconsin v. Yoder) that suffering a substantial burden may even require a willingness
Re: Court Rejects Religious Liberty Challenges To ACA Mandate
So long as an organization is hiring outside the faith, I think these cases should not go in favor of the religious organization. These arguments are religious liberty-creep arguments in that the argument is not that the believer will be forced to engage in conduct that violates his or her beliefs, or be stopped from advocating for his/her beliefs. The argument is that the religious believer feels burdened when others exercise their religious beliefs with the money or benefits obtained from the employer. This is an alarming slippery slope in my view. If there is a constitutionally cognizable burden on religious belief/conduct when a nonbeliever uses the employer's money according to the believer's own principle, the employer is obtaining a right to deter and burden (economically) differing believer employees. Lyng, Lee, and Bowen were not popular among legal scholars when decided, generally, but they have not been overturned, and their reversal is highly unlikely. (I agree with Sandy that is very hard to distinguish between the pacifist cases and the ACA case(s).) I do think they are as close to on-point as you can get, and with the believers losing in those cases, it is very hard to permit the believer to win in these cases. The key here in my view is that the religious believers lost the political battle and are trying to use the courts to obtain the exemptions they could not persuade Congress to include. They are not constitutionally mandated, nor are they cognizable under RFRA for lack of a substantial burden. Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 hamilto...@aol.com -Original Message- From: Douglas Laycock dlayc...@virginia.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sun, Sep 30, 2012 4:17 pm Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate My explanation was not that the judges are rooting for the government, although sometimes they are. My explanation was that a finding of no burden makes hard cases go away. These cases involve direct regulation of religiously motivated behavior. The Court's point in Bowen and Lyng was that there was no regulation of the plaintiff's behavior at all. So the direct/indirect point has no purchase here. It is not at all clear to me that large commercial business should win these cases. That is partly because of government interests of the sort marci mentions, and partly because the connection to religious exercise becomes increasingly attenuated as the business grows, and especially as the number of owners increases. But religious institutions should win these cases, and probably very small businesses that are personal extensions of the individual owner. On Sun, 30 Sep 2012 14:26:07 -0400 (EDT) hamilto...@aol.com wrote: The references to Barnett and Yoder are misplaced. This case is closer to Bowen, Lee, and Lyng than to either of those cases. In fact, Bowen, Lee, and Lyng cases are stronger for the believer, because the burden found to be insufficient in those cases is direct rather than indirect. The notion that courts don't find substantial burden, because they are rooting for the government, which is Doug's explanation, is insupportable. Substantial burden is a legal term of art, not a measure of how the believer feels about the burden. The burden here is incidental to their religious beliefs, not direct or substantial. But let's look at this issue from a broader perspective. Do those favoring the employee here favor the following arguments as well? Jehovahs Witness business owner should not have to pay for coverage of blood transfusions Scientology business owner should not have to pay for coverage of mental health benefits LDS business owner should not have to pay for coverage for treatments that include caffeine Evangelical or Catholic business owner should not have to pay for coverage of MS treatments derived from embryonic stem cell research There is no principled way to distinguish these demands from the demands made in this case. I also would point out that Title VII forbids business owners from discriminating on the basis of religion. Granting the business owner the right to tailor medical care to his or her religious beliefs strikes me as an end run around that principle. The work place is supposed to be neutral as to religion. When the employer can tailor benefits to fit religious viewpoint, he or she is gerrymandering the employment market so that conservative Catholics are going to be more likely to want to work for conservative Catholics and non-Catholics are going to be more inclined to avoid conservative Catholic employers. Can businesses create an employment universe where their owners impose their religious beliefs on the terms of employment consistent with Title
RE: Court Rejects Religious Liberty Challenges To ACA Mandate
In case this was confusing to list members, my quick comment to which Marty replied was bounced by the list (because it had too many addressees). Obviously it got through to Marty. Perhaps someone who has more information about insurance policies will know whether they list particular matters that they cover, such as contraception. The point remains that to require someone to enter into a transaction by which the person agrees to pay for an action makes the person more complicit in the action than if the govt extracts the funds from the person and pays for the action itself. At least, it is quite reasonable to consider the entering into an agreement to subsidize an action to be a fairly direct connection to the action. I will also say that the shift from abortion to contraception, as Marty has shifted it, may affect our analysis emotionally. Conceptually, there is no difference in whether there is a substantial burden, whether the issue is agreement to subsidize contraception or agreement to subsidize abortion. That is, there is no difference unless we think that abortion should be a bigger matter for a religious person than contraception, and that the stronger objection to abortion is relevant to the analysis. Now in fact abortion is a bigger matter than contraception for Catholics and for just about everyone who has a problem with being required to subsidize contraception. [In case anyone cares, I don't have a problem with my being required to subsidize contraception; I do have a problem with requiring people to subsidize it who have a sincere religious objection (which I do not have) to contraception.] But the law does not permit us to rely on the strength of the person's religious objection - for example, an objection to the taking of human life that is stronger than an objection to sexual immorality - to decide whether there is a substantial burden. We know that centrality, which is a very similar concept, is not to be considered in determining whether there is a substantial burden, so there can be a substantial burden even if the issue is not at the top of the religious person's list of religious moral concerns. It shouldn't matter whether we are talking about abortions or contraception, but to the extent someone thinks it matters, some forms of contraception are considered by some religious persons to cause abortions by terminating rather than preventing pregnancies. Lots of us may disagree with that characterization, but even if the difference between abortion and contraception matters, our disagreement about whether particular conduct causes abortions is irrelevant. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Sunday, September 30, 2012 10:22 AM To: Scarberry, Mark Cc: Law Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate I'm not sure why the existence of a contract would fundamentally alter the religious obligation question. But even if it did, the employer is not required to enter into a contract to provide contraception. It is required to offer its employees access to a health-insurance plan. To be sure, that obligation might, as a practical matter, mean that an employer might have to enter into a contract with an insurance company . . . but that contract would typically not mention contraception at all, let alone include a promise by the employer to provide reimbursement for contraception. The employer merely promises the insurance company that it will offer participation in the group plan to its employees, and perhaps also promises the insurance company that it will pick up a percentage of the premiums (not tied to whether any or all employees use contraception). On Sun, Sep 30, 2012 at 1:10 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto:mark.scarbe...@pepperdine.edu wrote: A very quick comment as I'm running out the door. There is a difference between a law that takes money from a person to pay for something and a law that requires the person to enter into a contract for provision of that thing. Imagine a Quaker being required to enter into contracts with gun dealers for provision of guns to his or her employees. Beyond the question of directness, a contract is an agreement; contract is about assent. Mark ___ 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: Court Rejects Religious Liberty Challenges To ACA Mandate
As I noted in an article some long time ago, there are (at least) 3 interests at stake in employment cases -- society's interest in non-discrimination and availability of employment for people; the employer's interest in practicing his or her faith in the workplace; and the employee's interest in a job, non-discrimination on the basis of religion, and getting the state-mandated benefits regardless of who his or her employer is. If we had a Smith standard in place rather than RFRA, then I think we'd see better balancing going on perhaps, though it would be under title VII. I think Smith goes too far in not balancing anything and giving the government nearly carte blanche -- hence the RFRA response. But who decides and on what basis does one decide when the threshold requirement of substantial burden is met? We now leave it to the judges and they do not just accept the word of the claimant -- polluting sacred mountains with sewage comes to mind as something adherents thought a substantial burden, but the court disagreed. Here, the employer is not stopped from doing anything. He is required to provide a benefit same as anyone else who enters the marketplace as an employer. The only burden comes from the employers own choice to (a) practice his beliefs in all aspects of his life and (b) to engage in a business that subjects him or her to offensive (to him or her) regulation. This is thus, for the adherent, and entirely avoidable conflict and burden. Unless one is willing to say a religious adherent needs to, or must, or is required to run a business that is subject to such regulation. Substantial burden is a blunt instrument. But it cannot be wielded the other way to give rise to unit vetoes in secular commerce. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ “It’s all about you, using your own mind, without any method or schema, to restore order from chaos. And once you have, you can sit back and say, ‘Hey, the rest of my life may be a disaster, but at least I have a solution.’ ” Marcel Danesi, in an interview about his book, “The Puzzle Instinct: The Meaning of Puzzles in Human Life.” ___ 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.
