Supreme Court won't hear appeal in Catholic CharitiesoftheDioceseof Alba...

[Brownstein, Alan]

Marci's focus on the public funds that Catholic Charities receives seems
odd, at least to me, since the legislative mandate in the California
case at least  was not a condition on funding and would have applied
with equal force to a religious organization that did not receive any
funds from the government.

 

Money is related to this case in a different way, however. Unlike some
conflicts between government and religious exercise in which the
regulatory interests of the state and the religious practice of
faith-based institutions may make compromises difficult, the Catholic
Charities case was exclusively about money and how it would be spent.
The state wanted to provide insurance coverage for medical
contraceptives for women working for employers who provided them health
insurance that included prescription drugs and directed employers,
including religious employers, to pay for the cost of that benefit.
Obviously, the state could have accomplished its health and equity goals
by having the state itself provide insurance coverage to employees
working for religiously exempt employers. And the state could have
required Catholic Charities to provide equivalent value in funds or
services (equivalent to the expenses they avoided by receiving a
religious exemption from the law) for some public good or services that
did not violate the tenets of the Catholic faith. (Something akin to
financial alternative service.)

 

Thus, the state could have respected the religious freedom  of Catholic
Charities without incurring any significant cost or risk. A free
exercise jurisprudence that allows religious liberty to be outweighed by
minimal state interests is debased - just as a free speech or other
fundamental right jurisprudence would be debased if it allowed rights to
be burdened for insubstantial reasons.

 

Alan Brownstein

 

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
Hamilton02 at aol.com
Sent: Tuesday, October 02, 2007 5:18 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Supreme Court won't hear appeal in Catholic
CharitiesoftheDioceseof Alba...

 

Brad-  Your views about the framers are not even supported by the
ministers at the time of the framing, who preached the rule of law from
the pulpit, as I have documented.  The framing generation was deeply
opposed to "licentiousness," which they viewed as acting immorally and
contrary to law.  The move in Yoder to permit religious entities to
trump neutral, generally applicable laws is an outlier in Supreme Court
jurisprudence. While it is true that various lobbyists were capable of
persuading Congress Yoder was the prevailing law before Smith, and
thereby obtaining RFRA, neither history nor case law supports such a
reading of either the framing or the jurisprudence.  

 

Now, you can certainly argue for more robust rights for religious
entities to avoid the law, but that is an argument for altering the
balance between religious entities and the rest of society.  As the
Boerne Court majority made clear, that is the rule that requires
constitutional amendment.

 

In any event, this is a far more abstract level than the Catholic
Charities issue deserves, because you have not answered the fact that
Catholic Charities is overwhelmingly funded by tax proceeds.  In many
respects, these are public institutions carrying out public social
services.  The double entitlement of public funds and right to avoid
neutral, generally applicable laws is about as far from Madison's
Memorial and Remonstrance as you can get.

 

Marci

 

Marci A. Hamilton

Visiting Professor of Public Affairs

Kathleen and Martin Crane Senior Research Fellow

Program in Law and Public Affairs

Woodrow Wilson School

Princeton University

 

 

 

 

 

 

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