I agree with a lot of what Marty says in his thoughtful post. For the record,
I think the plainitffs in the California case did focus on the religious
accommodation argument he discusses -- although their argument was not accepted
by the California Supreme Court.
Let me suggest four points
Alan writes that "having one or more inappropriate criterion taints the entire
accommodation provision."
Why?
Let's say, as
apparently was the case in the Catholic Charities case, that the
requirement of specified tax status would, standingalone,be a
perfectly permissible criterion, and
I think this is a genuinely difficult issue, Eugene, at least as an abstract
hypothetical.
My guess is it doesn't come up all that often because people with serious
mental problems probably manifest them in more than one way. So if the job
applicant hears voices, not only from G-d, but also
The case I've seen cited on this issue is Committee for Public Ed.
Religious Liberty v. Nyquist, 413 U.S. 756, 777 (1973) which
says:
"If the State may not erect buildings in which religious activities
are to take place, it may not maintain such buildings or renovate them when they
fall
In response to Marty:
First, one might ask what interest of the state in providing for
contraceptive needs of employees, or what part of the merits of providing
the employer with an exemption, is implicated by the section of the Internal
Revenue Code chosen by the organization under which it
An earlier OLC opinion, concluding that
Tilton and like cases govern the question, is at http://www.usdoj.gov/olc/doi.24.htm.
Chip Lupu and Bob Tuttle have a very helpful analysis of the Bush OLC
opinions here:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=16
I thought I explained "why",
but obviously I was not sufficiently clear. Let's take the criterion that the
employer discriminate on the basis of religion in hiring. Faced with the choice
of obeying the contraceptive coverage mandate and continuing not to discriminate
on the basis
Alan: I'm not sure I understand your
solution. If the exemption were widened to be a more general "conscience"
exemption, or even a "religious conscience" exemption, many more women employees
would themselves have to bear the costs of contraception. That might be a
"perfectly reasonable"
You wrote:
Nevertheless, even if the sort of "formal neutrality" rule espoused in
Thomas's Mitchell plurality becomes the governing doctrine, as I think
it will, these cases are still difficult, because there's nothing neutral, or
objective, about the decision to fund the rebuilding of the
I agree that the decision is almost certaintly not driven strictly
out of concern for the fact that it is a church or synagogue. Sorry if my
post suggested otherwise. I only meant to suggest that the religious
nature of the building might have played some role in the decision --
perhaps it
I believe that the
tax code provision in question is not the one that gives nonprofits a tax-exempt
status, but instead the provision (26 USC 6033(a)(2)(A)(i)) exempting
churches and their "integrated auxiliaries" from the requirement of
filing records and tax returns. That is to say, the
I very much appreciate the informative posts on this issue. Two questions:
1) Would this be a different issue if the exemption was something being added
to an older statute, rather than part of what I take to be a new policy
requirement? That is, does the timing of the exemption make any
I think the issue of historical restoration and preservation is a tricky one,
precisely because of the potential for strategic mispresentation. I would feel
much better if the decision had been made by a professional board of architects
(who would no doubt be completely credible in claiming
With regard to your second question, Richard, I believe Catholic Charities
explored the possibility of cancelling prescription drug coverage for its
employees and giving them a stipend that they could use to obtain insurance on
their own -- with or without coverage for medical contraceptives. I
Marty,
Let's assume the cost of the supplemental insurance coverage each year is $1
million (I'm just making this up. It's just so we have a fixed dollar amount to
use for comparative purposes.)
Let's also assume that Catholic Charities provides some social services to the
general public
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