Supreme Court won't hear appeal in Catholic

[hamilton02 at aol.com]

Alan is looking at this issue through a judicial lens (perhaps spending conditions on a religious entity might violate the First Amendment, or not), which is legitimate given the context of discussing the Supreme Court's denial, but I reject that as the appropriate base from which to analyze this issue.  These issues properly belong in the legislature, and the parameters to be examined involve insurance coverage (in particular relating to women), the best system of insurance delivery, and whether employers, because they are religious, should be permitted to avoid an otherwise neutral and generally applicable law.  I believe that the facts are always crucial for such considerations, and one of those facts is that the law is applying to some religious entities whose funding is almost exclusively public funding.  So where accommodation is on the table as an issue to consider, public policy might be different for wholly private entities and those that are doing what amounts to public work on public dollars.  Alan has outlined his solution to the problem (govt payment of some insurance coverage) -- this is a conclusion that is only properly crafted by an elected legislature; courts are incompetent to make a call on insurance and who pays what.  

One of the frustrations of this field is that discussions stop at the courthouse door.  The failure to obtain what they sought through the courts hardly ends the story.   I don't think anyone would disagree with the proposition that the Catholic Church (and Catholic Charities itself) is perfectly capable of representing itself and its interests to legislators.  

Marci


Marci A. Hamilton
Visiting Professor of Public Law
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University





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.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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