Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof

[Richard Dougherty]

Marci:
I must be missing something big here.  The question isn't whether
the legislature was kind enough to carve out an accommodation -- that
it's required to do.  So it can't _not_ accommodate (unless, of
course, it simply doesn't regulate).  The question is whether its
accommodation is so narrow as to violate free exercise. 
There is no mention in the statute about receiving public funding; as
the California Court argued, this was a case of addressing gender
discrimination, not poverty or access to services.  What the state
has done is to decide for Catholics what is part of their Catholic
teaching and what is not.Richard Dougherty
-----Original Message-----
From: <hamilton02 at aol.com>
Sent 10/3/2007 2:25:12 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Supreme Court won't hear appeal in CatholicCharitiesoftheDioceseof
Alba...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?
Marcithink 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.comSent: Tuesday, October 02, 2007 3:18 PMTo:religionlaw at lists.ucla.eduSubject: 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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