The answer has to lie somewhere in between these two stark alternatives, doesn't it? It can't be that the cost to the government (the public) in mitigating or avoiding the harm caused by granting an exemption can never be high enough to be compelling. But it also can't (or shouldn't) be that any accommodation that costs third parties or the government (the public) more than a de minimis amount violates the Establishment Clause.
Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Tuesday, November 26, 2013 4:20 PM To: Law & Religion issues for Law Academics Subject: Re: Contraception Mandate But the government is under no obligation to provide contraceptive coverage for women even if it loses these two cases in the Supreme Court. And if it loses them, the female employees and family members who lose this coverage will suffer (in full) the third party harms that Nelson, Micah, Fred and others are discussing. You can't measure the scope of those harms by some hypothetical measure that may never get enacted. So the measure of their harm is the market cost of buying the contraceptives or contraceptive insurance (is there such a product?). That is, on average, far more than the de minimis cost that TWA v. Hardison says is the (Establishment Clause) limit that Title VII can be allowed to impose on employers. Avoiding that third party harm IS the compelling interest in the case. Allowing hypothetical government provided substitutes -- e.g., if XYZ Company won't hire women, the government can hire them -- will mean the government can never win a RFRA case once substantial burden has been shown. That can't be right. On Tue, Nov 26, 2013 at 5:42 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: The less restrictive means would be to have the government offer such a plan, which employees could buy from the government (or from some other entity), without the employer being involved. After all, until recently, employers weren't required to provide insurance at all, though there were substantial market pressures and tax incentives for them to do so. The alternative would simply retain that pre-ACA system for the tiny corner of health care spending involved in blood transfusions for employees of companies that oppose such transfusions. Now I certainly wouldn't say that such an alternative is constitutionally mandated, and I wouldn't relish the prospect of judges deciding, as a constitutional matter and with no possibility of legislative override, whether such an alternative would be too expensive or burdensome on the government. (That's one reason I support Employment Division v. Smith as a view of the Free Exercise Clause.) But RFRA is a Congressional judgment that judges should generally engage in least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to Congressional authorization and with the possibility of a Congressional override. So under RFRA, courts would have to consider whether this alternative system of funding blood transfusions is indeed a less restrictive means of serving a compelling government interest. Eugene
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