Rick asks an important question. We can step back from the constraints of the current litigation and think about how this issue should be resolved on a clean slate, (This analysis also requires ignoring the polarized and dysfunctional governments that exist at the national level and in many states.) One basic model for resolving this issue and some others involving the provision of intangible and fungible goods, would suggest: 1. that government exempt conscientious objectors from the operation of the statute; 2. that government provide the insurance coverage to which they would otherwise be entitled to the employees of exempt employers; 3. that if exempt employers save money as a result of the exemption, they should contribute an equivalent amount to some government identified public goods that are consistent with their faith -- thereby mitigating if not eliminating the cost to government of providing the insurance coverage to the employees of exempt employers, and also mitigating if not eliminating any incentive to assert a sham claim to an exemption just to receive the secular benefits that result from the exemption.
Marty's argument that there really is no mandate essentially suggests that the Affordable Care Act does this preemptively by giving all employers an alternative to providing the insurance coverage that some oppose on religious grounds. While Marty and Eugene very ably discuss whether the Affordable Care Act really gives employers an adequate alternative to providing the insurance, we should not lose sight of the foundation of their very thoughtful posts. A system that provides for alternative duties or obligations consistent with the objector's faith by requiring appropriate alternative contributions that indirectly offset the costs to government of making sure that the beneficiaries of the statute do not lose out does not substantially burden religious persons nor does it impose unreasonable costs on government or third parties. Not all accommodation issues can be resolved under this approach. Perhaps most cannot. But some can. If we are going to live together in a religiously pluralistic society in which government tries to respect the autonomy and dignity of all persons, isn't this kind of compromise the best approach to solving a problem like this one. Alan ________________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Garnett [rgarn...@nd.edu] Sent: Wednesday, December 18, 2013 9:12 AM To: Law & Religion issues for Law Academics Subject: RE: Are large employers really better off dropping health insurance? Dear friends, I’m also grateful to Eugene, Marty, Nelson, Micah, Fred, and many, many others who have been blogging and writing – carefully and insightfully – about the HHS cases. I wanted to raise a not particularly technical or doctrinal question that has been on my own mind as I think about the cases: Let’s put aside (just for now) our conversations and disagreements about the meaning and applicability of RFRA (that is, about whether or not that statute requires an accommodation for some objecting and non-exempt employers) and also about whether the Establishment Clause precludes such an accommodation. Let’s put ourselves, instead, in the position of legislators (or staffers!) drafting the ACA, or administrators (or staffers!) drafting the relevant rules, in the first instance. Let’s say we’ve decided that preventive services should be available to all women without cost sharing and that these services should those that are at issue in the HHS lawsuits. We know that some employers – not many, but some; primarily religiously affiliated, but not all – will have religion-based objections to providing coverage that includes these services to their employees. Would we have any good reasons affirmatively to decide *not* to craft the statute or regulations in such a way that the employees of objecting employers would receive the services in question via a mechanism or route that avoided the objection and accommodated the objectors? Perhaps no such alternative mechanism or route – one that delivered the services without additional inconvenience or cost to the beneficiaries -- was or is feasible. Others on this list have more direct experience than I do with these matters, but my impression is that alternatives were and remain possible. We would want any such alternative to not involve inconvenience or disadvantage to the beneficiaries or to give the objecting employers any kind of financial windfall or competitive advantage. But, again, I assume such an alternative could have been designed. (If I’m wrong about this, then the objecting employers are, it seems to me, in a weaker position.) Perhaps, instead, our reasons for not accommodating would have to do with costs of another kind: We might think that accommodating these employers would undermine certain public commitments or shared values that should not be undermined, or that accommodating them would “express” something (an endorsement of patriarchal or outdated views regarding sexuality, perhaps) that we don’t want the government to express. I don’t think that accommodating objecting employers would do either of these things, but maybe some of us disagree. If we saw the objecting employers as aligned with interests and aims that we find repugnant, we might not want to accommodate them just because, well, they are on the side of things we find repugnant. Or, maybe, we would decline – even if we could go back in time and re-draft – to accommodate objecting employers because we think religious objections to generally applicable laws should not be singled out for solicitude unless such singling out is somehow required by the Constitution. Or, maybe we think that, categorically, commercial (or non-house-of-worship) employers do not and cannot “exercise religion” so cannot be burdened in ways that call for accommodation. Again, I don’t mean here to engage the important and interesting analysis that others are developing and sharing regarding the RFRA claims or Establishment Clause case law. I’m thinking more in terms of “how should our political community handle what appears to be the tension between our desire to secure and provide a certain benefit and the religion-based concerns of some to a particular mechanism for providing and securing that benefit?” If an accommodation (that does not impose burdens on the employees of objecting employers and that does not give an unfair windfall to those employers) was, and remains, feasible, then why *shouldn’t* we provide it? Best, R Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu<mailto:rgarn...@nd.edu> To download my scholarly papers, please visit my SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://mirrorofjustice.blogs.com/> Twitter: @RickGarnett<https://twitter.com/RickGarnett> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, December 18, 2013 11:37 AM To: Law & Religion issues for Law Academics Subject: Re: Are large employers really better off dropping health insurance? I apologize for not responding right away, but I'm slammed with other stuff. There is a lot to say here, and I think it's important -- Eugene is raising some good questions. I'll try to respond in the next day or so; in the meantime, I'm very grateful for all the reactions, both supportive and critical (and both!) . . . please keep them coming, thanks. On Tue, Dec 17, 2013 at 9:10 PM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: The heart of Marty’s argument (I focus for now on item 1 below) is, I think, an empirical claim: Large employers such as Hobby Lobby would be better off just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of [the] enormous cost savings” to compensate employees for the lost coverage, thus keeping the employees happy, and then pocketing the rest of the “enormous cost savings.” (Indeed, if employees grumble over the inconvenience or just the change, the employers can split some of the rest of the enormous cost savings with the employees -- a win-win proposition for employers and employees.) And, if Marty is right, this would be true for employers generally, not just religious employers. We should thus expect a large fraction of savvy employers to take advantage of this option, purely out of respect for Mammon quite regardless of God. But I wonder whether this is empirically likely to be true, given not just the nondeductibility of the tax, but also other factors, such as payroll taxes on the compensation payment to the employees. It’s not surprising that the Justice Department hasn’t made this argument, since the Administration has long argued (unless I’m mistaken) that large employers won’t drop employer-based health insurance. And the Congressional Budget Office, http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, likewise took the view that only a tiny percentage of employers would drop their health insurance, because “the legislation leaves in place substantial financial advantages for many people to receive insurance coverage through their employers, and it provides some new incentives for employers to offer insurance coverage to their employees.” Now of course that was in 2011, and perhaps the analysis today would be different. But the CBO’s estimates still give me pause. And if the CBO is right, and large employers generally would lose financially -- rather than gain from capturing some of the “enormous cost savings” -- by dropping health insurance and adequately compensating employees, then I would think Hobby Lobby and others would be in the same position. The mandate, even enforced as a tax, thus would be a substantial burden. Am I mistaken in this? Marty, do you have any pointers to studies that support your sense of the money flows on this, and contradict what I see as the CBO’s view? Eugene Marty writes: 1. On your first point, even if the 4980H(a) tax were the equivalent of a $3000 assessment (because it's paid with after-tax dollars), the average cost for providing health insurance to employees is, as I understand it, closer to $10,000, so the employer would save about $7000 per employee. (In any event, there are no allegations in these cases that HL or CW is significantly differently situated than a typical employer, e.g., that they have a workforce comprised of almost all single employees with no family coverage.) In order to remain competitive for recruiting or retaining most of their employees, the plaintiffs wouldn't have to kick in any extra money in salary, because the employees would have their exchange-purchased plans subsidized by the federal government (both in terms of the cost-savings realized by virtue of the exchanges themselves as well as the government's premium tax credits and cost-sharing reductions. To be sure, some of their more well-compensated employees might have paid less in premiums for the HL plan than they would to purchase a plan on the exchange (maybe -- again, there's no allegation or evidence of that here). But to make up that hypothetical shortfall, and attract those employees, HL need only use some of its enormous cost savings to sweeten their salaries. (This is presumably what the many large employers who do not provide plans will do.) For all these reasons, it is difficult to imagine HL or CW --or, more to the point, the average large employer -- being financially worse off if it pays the assessment. (And again, there's no allegation of facts that would alter that conclusion here, in any event.) _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
