Supreme Court won't hear appeal in Catholic

[Richard Dougherty]

While I agree with Marci that the level of public funding Catholic
Charities receives is problematic, because it leaves it vulnerable to
these sorts of problems, and perhaps leads to compromise in other
areas, I think Alan is spot-on in his analysis here.  The CA and
NY cases had nothing to do with accepting public funding, but directed
employers on what kind of benefits to provide employees.  Catholic
Charities could avoid the problem by refusing to provide prescription
drug benefits; compelling them to do that -- violating their mission --
in order to avoid violating their mission is the debased element in the
law.Richard J. Dougherty
-----Original Message-----
From: "Brownstein, Alan" <aebrownstein at ucdavis.edu>
Sent 10/2/2007 3:24:55 PM
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Subject: RE: Supreme Court won't hear appeal in Catholic
CharitiesoftheDioceseof Alba...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.comSent: Tuesday, October 02, 2007 5:18 AMTo: religionlaw at lists.ucla.eduSubject: 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. HamiltonVisiting Professor of Public AffairsKathleen and Martin Crane Senior Research FellowProgram in Law and Public AffairsWoodrow Wilson SchoolPrinceton University      See what's new at AOL.com and Make AOL Your
Homepage._______________________________________________
To post, send message to Religionlaw at 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.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20071002/4c3a3850/attachment.htm