I don’t see that at all. Say the government requires employers
to buy lunch for their employees, and a religiously vegetarian employer orders
only vegetarian food. I don’t think that somehow constitutes the employer
discriminating based on religion against people who don’t share his beliefs.
Now say that the government requires employers to buy lunch for
their employees, and include meat (since that’s what the government sees as
part of a healthy, balanced lunch), but has an exemption for religious
employers. I don’t think that would somehow violate the Establishment Clause,
on a Thornton theory. Unlike in Thornton, the exemption wouldn’t impose any
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a
believer’s action (Amos’s explanation of Thornton). It would simply -- like in
Amos or in Cutter, which are indeed relevant for purposes of understanding the
boundaries of Thornton -- exempt the employer from a government-imposed
requirement, and indeed a requirement that (more so than in Amos) involves a
government-imposed burden on the employer’s religious practice. That the
employees no longer get a government-mandated benefit does not make the
exemption unconstitutional.
So I don’t think there’s an Establishment Clause problem with
such exemptions, and likewise there wouldn’t be with any such exemption
recognized under RFRA. To be sure, this doesn’t tell us whether the exemption
should still be denied, on the theory that the denial is necessary to serve a
compelling government interest. But that’s a separate question from whether
the exemption would be outright unconstitutional.
Eugene
Marci wrote:
The employer is insisting that employees accept benefit plans tailored to his
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or gender).
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