Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof Alba...

Wed Oct 3 12:25:12 PDT 2007

Alan -- I get your point; but I disagree with your approach.  Your point is that the Constitution, by which you mean the courts, should prevent this sort of legislative enactment from being  applied to a religious entity, and here is the economic reasoning that proves the point.  My point is only that your arguments are in the wrong forum -- where many would disagree, quite defensibly, with your notion that government dollars are fungible with private dollars in a free market economy.  We'll have to agree to disagree.  

With respect to Mark's point about the lack of general applicability -- sounds to me like what California has done is to carve out religious institutions that are working wholly within their faith, but correct me if I'm wrong.  It has only burdened religious organizations that operate as public service providers, like Catholic Charities, which it knows is almost completely funded by state and federal dollars.  Therefore, under this reasoning, it should be held unconstitutional for targeting.  That is a clever argument, but it defies common sense.   California did not have to carve out the first category.  If by creating an accommodation, the legislature cannot draw distinctions based on public function, the logical conclusion is that there should be no accommodation.  How does that aid the religious entities?

Marci

think you may have misunderstood my position, Marci. Let me see if I can state it more clearly.

I recognize that the cost of insurance premiums is an expense for whoever pays it. But I also recognize that money is fungible. If the state picks up the expense of paying the insurance premiums for the employees of religiously exempt organizations and the religiously exempt organization picks up the comparable cost of some public service that the state would otherwise be obliged to pay for (a public service that does not conflict with the religious organizations beliefs), than the financial issue is basically a wash.

Assume the insurance premiums are one million dollars (a made up figure). The state pays the one million dollars for increased premiums for the employees of Catholic Charities and other religiously exempt organizations. Catholic Charities (which you noted in an earlier post provides a lot of public services for the state) takes on (at its own expense) an additional one million dollars in public services as a condition for receiving the exemption (like alternative service requirements imposed on conscientious objectors).  There may be some administrative costs here – but this is a pretty low cost solution for the state.

When we are talking about money – which is what this case is about – the free exercise interest here isn’t the right of Catholic Charities to be exempt from a financial expense that all other employers must accept, it is the right not to be required to spend the money in a way that violates the tenets of their faith. (By analogy, the free exercise interest of the religious pacifist is not in being exempt from a civil obligation of public service for two years of his life, it is in not having that service directed to killing people in war.)

Obviously, there will be other cases where arrangements like this would be impossible. The question then would be determining at what point the costs of protecting a right justify the abridgement of the right.  I think most rights are expensive political goods and we do not require their protection to be cost free or even low cost. I do not believe free exercise rights should be treated differently. 

But the Catholic Charities case is particularly problematic to me because alternative, low cost solutions were available that would both protect religious liberty and serve the state’s legitimate interests.

Alan Brownstein

Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003

-----Original Message-----
From: Brownstein, Alan <aebrownstein at ucdavis.edu>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
Sent: Wed, 3 Oct 2007 12:36 pm
Subject: RE: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof Alba...

I think you may have misunderstood my position, Marci. Let me see if I can state it more clearly.

I recognize that the cost of insurance premiums is an expense for whoever pays it. But I also recognize that money is fungible. If the state picks up the expense of paying the insurance premiums for the employees of religiously exempt organizations and the religiously exempt organization picks up the comparable cost of some public service that the state would otherwise be obliged to pay for (a public service that does not conflict with the religious organizations beliefs), than the financial issue is basically a wash.

Assume the insurance premiums are one million dollars (a made up figure). The state pays the one million dollars for increased premiums for the employees of Catholic Charities and other religiously exempt organizations. Catholic Charities (which you noted in an earlier post provides a lot of public services for the state) takes on (at its own expense) an additional one million dollars in public services as a condition for receiving the exemption (like alternative service requirements imposed on conscientious objectors).  There may be some administrative costs here – but this is a pretty low cost solution for the state.

When we are talking about money – which is what this case is about – the free exercise interest here isn’t the right of Catholic Charities to be exempt from a financial expense that all other employers must accept, it is the right not to be required to spend the money in a way that violates the tenets of their faith. (By analogy, the free exercise interest of the religious pacifist is not in being exempt from a civil obligation of public service for two years of his life, it is in not having that service directed to killing people in war.)

Obviously, there will be other cases where arrangements like this would be impossible. The question then would be determining at what point the costs of protecting a right justify the abridgement of the right.  I think most rights are expensive political goods and we do not require their protection to be cost free or even low cost. I do not believe free exercise rights should be treated differently. 

But the Catholic Charities case is particularly problematic to me because alternative, low cost solutions were available that would both protect religious liberty and serve the state’s legitimate interests.

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 3:18 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof Alba...

Alan-- Are you seriously saying that having the state bear the cost of insurance is a no-cost option?  Your solution is not economically viable from my point of view and our differing economic conclusions just further shows that the better individuals to figure out that sort of public policy are elected representatives. 

 Marci

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