Wouldn’t that include giving them a paycheck?
Well, sure: Hobby Lobby is the plaintiff. So I’d say that Kennedy’s opinion – which is NOT the opinion of the Court – says that for this particular plaintiff, that accomodation would qualify as least restrictive. I don’t see him making the more general statement that this accomodation would also be the least restrictive in the case of another plaintiff with different beliefs, such as the college at issue in our current discussion. And of course Kennedy’s opinion is not the Court’s opinion, so any criticism of how the Court changed its mind can’t really rest on Kennedy’s opinion.
I’m afraid I don’t agree. It’s not weaseling – it’s a simple proof: since there is at least one other option less restrictive, clearly the government’s position with respect to Hobby Lobby fails. That’s not unclear at all.
And I was responding to what I understood your critique to be. It wasn’t immediately obvious to me that you were simply adopting Sotomayor’s critique in toto.
That’s absolutely true. And perhaps some fact-finding is necessary before it’s the idea that Wheaton’s burden is substantial can be dispelled or accepted. But their pleading certainly lays out facts that, if believed, would support a finding of substantial burden.
So here I confess I’m not sure what the legal standard is, and don’t have time to look it up, so I’ll defer for the moment to you: what, beyond a well-grounded pleading, is necessary to warrant this type of injunction. High probability of success on the merits?
I think there might be a useful analogy found in various Jewish practices – practices which are sometimes criticized in the same way as you’re doing here. Some people point to the Jewish practice of hanging an eruv – a wire around a Jewish neighborhood that creates a single large private domain – as being vulnerable to the same sort of “isn’t it the same?” criticism. The boundaries inside the eruv constitute private space and allow the carrying of objects on the Sabbath that would otherwise be forbidden as “work.” But the eruv is just a wire strung around the neighborhood; it creates a legal fiction of a boundary, but that’s enough in the observant Jewish practice.
There is also the practice of hiring a shabbos goy – a Gentile – to perform such work (melakha) when it would be forbidden to an observant Jew. This, too, raises similar criticism: what’s the moral difference, some ask, between doing it yourself and hiring someone to stand right there and do it when needed?
But for the observant Jew, of course, there is a substantial difference.
So, too, here: for Wheaton College, the line is signing the form. They are willing to let someone else sign the form and write “because Wheaton won’t sign” on the form; they themselves are not willing to sign it.
I certainly don’t share their views: if I were they, I’d sign. But that means nothing for the legal analysis. They agree they’re not burdened if someone else signs, and frankly, that doesn’t seem to be a big deal for the government – by that I mean that I doubt the government can show a compelling interest in having Wheaton sign.
Let me ask you, what is the least restrictive means that could possibly occur? Single Payer Health Care? Free contraception on the taxpayer dime? Do you envision any possibility of those occurring?
I’m not. I think Alito is a weasel, not a liar.
What are those facts?
Sotomayor lays it out in IIA of her dissent.
So you agree that the moral line they are drawing is wrong, correct? Do you agree it isn’t a substantial burden on their religion to sign the form? If not, what wouldn’t be a substantial burden. And, using their logic, wouldn’t providing any notice whatsoever be considered a substantial burden?
Or paying a employee who buys contraception? Wouldn’t that be, again using their logic? Or having 401 money invested in contraception? Wouldn’t that be immoral using Wheaton’s standard?
Doesn’t there has to be some line drawn beyond the person’s deciding for themselves when they are substantially burdened? How do you draw that line?
If I understand the injunction ruling correctly, the university is required to send written notice to HHS saying - actually I’m not entirely sure what it has to say, just that they are objectors or whatever. I’m no theologian nor a Supreme Court justice, but I do not see any real distinction between filling out an opt-out form and sending a letter saying that I object to filling out the form. But straining gnats, swallowing camels and all that.
Of course there’s a line. It’s called the goal line. If only those darn goal posts would stop moving.
This all reminds me of homeopathy; the farther removed one is from the abhorrent thing, the greater the burden. It’s not a moral burden to invest in contraceptive stocks in employees 401K, but signing a form is.
You appear to be conflating two different parties. So far as I am aware, Wheaton College doesn’t have a penny invested in objectionable funds via 401K, and so far as I am aware, Hobby Lobby does not object to signing any forms.
You’re right, I realized that after I posted. Between the Zoloft and these byzantine legal issues I’m easily confused.
Actually, I think free contraception insurance on the taxpayer’s dime is probably the answer, and I think it’s a decent possibility.
- The mandate, as applied to Wheaton College, violates the RFRA.
1a. Wheaton College has a sincere religious belief that forbids them from complying with the HHS contraceptive mandate.
1b. Wheaton College has a sincere religious belief that forbids executing EBSA Form 700, which authorizes another entity to provide coverage in Wheaton’s place.
1c. HHS concedes (1a) and (1b).
1d. The burden is substantial for non-compliance.
1f. The government’s method of having Wheaton execute Form 700 is not the least restrictive. They can simply proceed without the form.
So from reading her dissent, the line is that the entitlement to relief (I.e., the injunction) must be “indisputably clear.”
I think it is. If the government has to wait a bit for them to sign the form, and proceed without a form in the meantime, what’s the harm? But to force Wheaton to violate their faith is precisely the harm the RFRA is crafted to prevent.
Of course, a lot depends on your view of Wheaton’s ultimate likelihood of success. She suggests their claim is likely to fail.
I disagree. I think their claim will succeed.
Wanna bet on that?
No, no, you misunderstand. I say it would not be a substantial burden on MY religion to sign the form. But they have a different place to draw the line, and it’s not for me to say that place is wrong for them.
As I understand their claim, they don’t wish to sign a form that has the effect of deputizing someone else to sin on their behalf. I gather they can provide notice in a way that does not indicate their approval of the subsequent action.
The “substantial burden” analysis is done against the penalties assessed by the government for failing to comply. In this case, fines in the neighborhood of $34 million per year are the penalty. For anyone, that seems substantial.
It seems to me you’re trying to cast the signing of the letter as a burden that isn’t substantial. But that’s not the correct analysis.
I doubt it I really really doubt it. Really. Really doubt it Do you honestly think that enough Republicans would vote for publicly paid for contraception for women who want it to make it a federal law? After Hobby Lobby?
Let’s bet on that. I say that there will be no federal legislation passed that covers publicly funded contraception on the scale that would have been covered by the individual mandate. You can have the other side, that somehow there will be a new federal law that covers contraception to the level the individual mandate would have covered. You can name the stakes.
Those show that Wheaton College has a sincere religious belief that signing the form would make them sin, which is, as far as I can see, uncontested. What I don’t see is any actual facts that the burden of signing the form is substantial.
Did you read all of it? “To understand how high a bar that second prong is,consider that this Court has previously pointed to differences of opinion among lower courts as proof positive that the standard has not been met. See Lux v. Rodrigues, 561 U. S. 1306, 1308 (2010) (ROBERTS, C. J., in chambers)(observing that “the courts of appeals appear to be reach-ing divergent results” respecting the applicant’s claim, and that, “[a]ccordingly, . . . it cannot be said that his right to relief is ‘indisputably clear’”). Neutral application of this principle would compel the denial of Wheaton’s application without any need to examine the merits, for two Courts of Appeals that have addressed similar claims have rejected them.”
I, Chief Justice Roberts at one time, and Sotomayor think that if there is a Circuit split, then it can’t be said that it is “indisputably clear”.
You’ve gone back to this thought a lot recently. Is this new? Do you think that you, or say the Catholic Church or Wheaton College, has no role in deciding that abortion is wrong, because the woman gets to decide where the line is drawn? You do not support any judgment of others anymore? Say if you disagree with someone, you won’t resort to calling them whiny bitches or that they live in a moral vacuum. Nothing judgmental like that?
I like this new un-judgmental Bricker. He’s a better man than I.
How? How is filling the proper form out different than writing a letter or checking a box or sending a Dance-O-Gram to HHS telling them they won’t cover contraception? Is it a special immoral ink used in the form?
I kid, but I really don’t see how the two are different. Please explain it to me.
That’s the burden if they don’t sign. What the college has to show is the substantial burden if they do sign.
How so? Wheaton has to show that the action required (signing the form) is the substantial burden on their religious beliefs, not that the penalty if they don’t is a substantial burden. If they sign the form, there is no burden. Again, unless I’m not grasping the intricacies of your argument, I don’t think you’re looking at the right thing.
I was not suggesting that there was imminent federal legislation that would provide universal publicly-paid contraception.
Look again – you asked:
So you’re asking – as I read it, anyway – about what the least restrictive means are. Not a general, country-wide solution, but a solution in cases where there is a religious objection. So with that in mind, I said:
I decline, since the proposition you assign to me is one I never advanced, and “a decent chance,” isn’t quite the ringing endorsement that would typically support a wager.
That’s not the question to ask, though. “Substantial” refers to the magnitude of pressure imposed by the government in requiring the believer to violate his faith, not the degree of violation the believer is pressured into committing. A good discussion of this difference is found in Abdulhaseeb v. Calbone, 600 F.3d 1301 (10th Cir. 2010). A government act imposes a “substantial burden” on religious exercise if it: (1) “requires participation in an activity prohibited by a sincerely held religious belief,” (2) “prevents participation in conduct motivated by a sincerely held religious belief,” or
(3) “places substantial pressure on an adherent . . . to engage in conduct contrary to a sincerely held religious belief.”
In this case, the government places substantial pressure on Wheaton to sign the form. As you agree, signing the form makes them sin (in their view). The degree or amount of sin that ensues is not the “substantial,” that’s in question.
I did. But if the Court is convinced that the divergent opinions from the circuits are clearly a result of an inaccurate application of the law, then the disagreement no longer carries such persuasive import.
None of them ever enunciated a per se rule that a circuit split proved there was no indisputable clarity. They merely pointed to a circuit split as evidence; in this case, under this particular controversy, the right to relief is indisputably clear, notwithstanding the circuit split.
I’ve gone back to that thought because it’s the correct thought for RFRA analysis.
It’s not a general statement about how to live life. It’s the way RFRA claims must be approached.
They believe that taking an affirmative step, like signing a form, deputizes the insurer to sin on their behalf. I have no idea how they’d view a Dance-O-Gram.
Because you feel the “substantial” applies to the burden associated with signing. It does not. A substantial burden exists when the government requires the believer to violate his faith, as Abdulhaseeb describes.
On what basis does the government place “substantial pressure” on Wheaton to sign the form? It isn’t the belief in sin that creates that pressure, per my reading of Abdulhaseeb v. Calbone, but the degree to which the government provides or restricts some advantage if the religious beliefs of the person/organisation are gone against. Isn’t the signing of the form already the alternative measure designed to avoid providing or withholding advantage contrary to religious belief? If not, what’s the point of it?
If they don’t sign the form, the government will fine them millions of dollars.
Quoting Abdulhaseeb at 1315.
Wheaton’s instance is described perfectly by (3). They believe signing the form deputizes someone to sin on their behalf, which is itself sinful. The government says, “Sign the form or face fines of over a million dollars per year.” Paying the fine is not realistic; signing the form is engaging in conduct contrary to a sincerely held religious belief.
But that’s one step down from the level at which the initial problem lies - that in the first place Wheaton would object to being subject to the mandate, and that the form and other means have been provided so that that fine isn’t applied. Effectively the purpose of the form* is* to allow an “out”. Isn’t that the whole reason for its existence?
Yes, the form was the proposed solution to the original problem.
And yes, the form does provide an out to the requirement of providing contraception coverage.
And many religious entities have had no problem signing the form.
But the form requirement is itself not immune to the RFRA. So the fact that the form was the “out” to one unacceptable government requirement does not mean it is itself automatically acceptable.
The same RFRA steps apply to the form.
Ah, ok, I hadn’t thought of it like that. Thanks.
So, to your mind, since the contraception mandate is struck down, now Congress will enact legislation that will have the government pay for the contraception of those employed by the religious organizations who opt out? Is that right?
I wait with bated breath for that to happen. I think, given the climate, there isn’t even close to a “decent chance” that will happen.
Would your analysis of what constitutes a “least restrictive means” change if the one idea you posit is not feasible? Do you think a “least restrictive means” depends on the realistic possibility of it happening?
We can change to proposition to contraception paid for by the government for the workers whose employers opt out, if you like.
That’s not the entirety of the issue. The burden isn’t only judged on the possibility of repercussions of the decision, but also the burden itself. In Wheaton’s case, the burden is simply signing a form.
For examples: "Although Plaintiffs have a sincere religious objection to contraceptives, it does not automatically follow that their religious exercise is substantially burdened under RFRA. See, e.g., Kaemmerling v. Lappin, 553 F.3d 669, 679 (D.C. Cir. 2008) (the court “accept[s] as true the factual allegations that [the plaintiff’s] beliefs are sincere and of a religious nature – but not the legal
conclusion, cast as a factual allegation, that his religious exercise is substantially burdened . . . .”); Goehring v. Brophy, 94 F.3d 1294, 1299 n.5 (9th Cir. 1996) (observing that even if the government does not dispute that the plaintiffs’ beliefs were sincerely held, “it does not logically follow . . . that any governmental action at odds with these beliefs constitutes a substantial burden”), overruled on
other grounds by Navajo Nation v. U.S. Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007). To abandon this inquiry would “read out of RFRA the condition that only substantial burdens on the exercise of religion trigger the compelling interest requirement.” Mahoney v. Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011) (citing Henderson v. Kennedy, 253 F.3d 12, 17 (D.C. Cir. 2001)).
Yes, it is. The courts don’t simply conclude that, since the plaintiff thinks it’s a substantial burden, it is. They look at whether or not that perceived burden is substantial.
Again, as Sotomayor points out:
“Wheaton is mistaken—not as a matter of religious faith, in which it is undoubtedly sincere, but as a matter of law: Not every sincerely felt “burden” is a “substantial” one, and it is for courts, not litigants, to identify which are. See Hobby Lobby, 573 U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 21–22). Any provision of contraceptive coverage by Wheaton’s third-party administrator would not result from any action by Wheaton; rather, in every meaningful sense, it would result from the relevant law and regulations. The law and regulations require, in essence, that some entity provide contraceptive coverage. A religious nonprofit’s choice not to be that entity may leave someone else obligated to provide coverage instead—but the obligation is created by the contraceptive coverage mandate imposed by law, not by the religious nonprofit’s choice to opt out of it.5
Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.”
This is one of the reasons I’ve pressed you on what you think of Wheaton’s conclusion that signing the form is a burden on their religious beliefs. I’ll ask again: "And, using their logic, wouldn’t providing any notice whatsoever be considered a substantial burden?
Or paying a employee who buys contraception? Wouldn’t that be, again using their logic? Or having 401 money invested in contraception? Wouldn’t that be immoral using Wheaton’s standard?
Doesn’t there has to be some line drawn beyond the person’s deciding for themselves when they are substantially burdened? How do you draw that line?"
That’s the problem with your version of “substantial burden”. All someone has to do is claim it causes them to sin, and no amount of tenuousness, no amount of logic, can question it. If we accept Wheaton’s conclusion, wouldn’t even your plan that non-covered employees be paid for by the government also lead to a religious burden on them? By providing notice of any sort, they are “deputizing” someone (the insurer in this case, the government in your plan" to provide contraception to the employee, so they are burdened by providing notice.
Their logic requires that any action they take, signing the form, providing notice, (even paying the person) would require them to violate their religious beliefs.
It’s possible, but of course by no means certain. The other option is to shift the cost to the insurer, but that still leaves religious insurers unaddressed. Why not require all insurers in the federal exchanges to pick up a portion of these, like high-risk driver insurance mandates?
No. I think if there is a clearly “least restrictive” means that the government fails to adopt, that doesn’t change the analysis.
On the other hand, while the government can be required to spend additional money to craft an accommodation, it cannot be forced to spend without limit.
That has the advantage of being what I claimed, but since I only identified the chance as “decent,” it’s still not really a wager-able proposition.
No – the burden is that the form deputizes another party to sin on behalf of Wheaton.
Sure – because in Kaemmerling, the fatal flaw to the burden claim is: "Kaemmerling does not allege facts sufficient to state a substantial burden on his religious exercise because he cannot identify any “exercise” which is the subject of the burden to which he objects. Kaemmerling objected to the government conducting a DNA analysis on his DNA samples. But his objection was to an act that the government would perform, not an act that he was required to take. He wasn’t being asked to do anything. Wheaton College is being asked to do something.
Same problem. The students objected to abortion services being provided by the University as a religious burden on themselves. But they were not required to buy the insurance. They weren’t required to do anything. Wheaton College is being asked to do something.
Absolutely true. But a substantial burden arises when the government presents a “Hobson’s choice,” to the complainant. In Mahoney, the complaint was that Mahoney wanted to be able to draw in chalk on the sidewalk in front of the White House. His RFRA claim was, specifically, that his desire to chalk the sidewalk in front of the White House was religiously motivated. Here, his claim failed because he did not even allege, much less prove, that his religious exercise required the sidewalk in front of the White House, specifically. In fact, he admitted that " … Defacement Statute does not realistically prevent Mahoney from chalking elsewhere, as Mahoney concedes the District allowed him to do in the past."
True. But what makes a burden substantial is the government preventing a complainant from exercising his religion by forcing him to do something he regards as sinful. You cannot impose your idea that it’s “just a form.” It’s a form that deputizes their insurers to sin on Wheaton’s behalf. Wheaton cannot stop the insurer from sinning, of course, but they can insist they take no active part in it.
I have highlighted the error Justice Sotomayor is making. Her judgement of what a meaningful sense is does not control. It is not for the courts to decide that a particular line that’s drawn between sinful and non-sinful conduct is meaningful. The courts can certainly assess whether the evidence supports the claim that the belief is sincere. They cannot independently judge that the line drawn is valid.
True. And so let Wheaton not sign the letter, and require that the “someone else” cover it anyway. That leaves the law’s requirement intact, and does not burden Wheaton with the sinful requirement of signing a letter directing someone else to sin.
No. A notice that simply stated they were a religious entity within the meaning of the law would suffice.
None of these questions are asked in the context of the RFRA. Paying an employee? What does that mean, specifically? A failure to pay an employee who is owed money because the employee has announced he intends to purchase contraception would not work; the employee has a cause of action against the college under state law. Firing the employee would probably be valid, assuming the employee is an at-will employee, unless there’s some federal protection for contraceptive-using employees. If there is, then that claim is tested by the same RFRA analysis we’ve been discussing: is the belief sincere? Does employing someone who uses contracpetion violate that belief? Is the government’s interest compelling? And is the government’s remedy narrow?
My personal opinion is that someone who says, “I can’t sign a form that deputizes someone to sin,” would have a hard time defending a 401K investment in funds that included contraception. Not impossible, but if I were to learn that Wheaton had 401K money in contraception companies, I’d be much more skeptical of their claim that the form was a substantial burden.
Of course, we can’t impute Wheaton’s standard to Hobby Lobby, or vice versa. So far as I’m aware, Hobby Lobby would have no problem signing the form.
The person gets to decide where his lines are. The courts get to decide if the government’s pressure to cross that line is “substantial.”
It’s not simply “my version.” It’s the standard enunciated in each and every case decided under the RFRA.
And the government is free to challenge the sincerity of each claim.
But Wheaton does not say they object to “any notice.” They object to the wording of the notice required by 26 CFR §54.9815-2713A, “EBSA Form 770,” because it says: “The organization or its plan must provide a copy of this certification to the plan’s health insurance issuer (for insured health plans) or a third party administrator (for self-insured health plans) in order for the plan to be accommodated with respect to the contraceptive coverage requirement.”
They don’t object to notice to the government. They object to giving this notice directly to the people whose only legal option upon receiving this form from them is to begin to sin. Now, you may say, why isn’t it the same if they give the form to the government and the government gives it to the third party?
Answer: for the same reason Thomas could work in the foundry making steel but not in the factory making tank turrets, even though the steel from the foundry was delivered to the tank factory.
Quote:
This is one of the reasons I’ve pressed you on what you think of Wheaton’s conclusion that signing the form is a burden on their religious beliefs. I’ll ask again: "And, using their logic, wouldn’t providing any notice whatsoever be considered a substantial burden?
That’s nuts. Not all religious entities object to participating in contraceptive coverage. How is the government to know which religious entities object? Divine revelation?
More to the point, how is it possible to come up with some way for Wheaton to let it be known that they wish to opt out on religious grounds when their position is that informing others of their situation is problematic for them? If the obvious purpose is to take advantage of that out, which it must be, in what regard from Wheaton’s perspective is it acceptable where signing the form or other options are not? I see you’ve provided an explanation of how that might be so, but what if Wheaton disagree with your logic re: steel and tank turrets? I know I, personally, would not agree with that logic were I a pacifist steelworker.