I am not suggesting that "divisiveness" should be a rule of decision.
Rather the purpose of the religion clauses is to allow people with
strong, differing views live together in reasonable harmony. Thus in
interpreting religious exemptions the Court needs to keep that principle
in mind. Perhaps the Hobby Lobby decision itself is not important, but
it will set a precedent. As far as I am concerned medical insurance
provided by the employer is compensation and the employer should not be
able to limit an employee's use of compensation. If the religious view
that enabling someone else to get an abortion, or birth control that the
employer, but not the medical profession, regards as abortion, then
almost any arguably religious based claim must be upheld. That, I
suggest, would give people defining their own religious beliefs an
exemption to interfere with the rights of others. And a country where
religious people, but not others, need not obey the general laws of the
land is not the way to help the religious and the non-religious live
together in reasonable peace. So what I am talking about is not the
consequences of any one decision, but of a general interpretation of
religious exemptions.
I do realize that Congress has the right to enact federal law with
exceptions, but as with conscientious objection, I do not think it is
proper to treat non-religious people unequally. I have never seen an
argument that the due process clause limits the religion clauses
although I have seen equal protection reasoning use in free speech
cases.
Someone (maybe off-list) suggested that treating for-profit companies
like non-profit groups and allowing them to put the cost of coverage on
the insurance companies on the theory that there is no significant cost
to the companies of covering contraception would solve the problem. But
as I understand it, the Little Sisters of the Poor will not certify that
they have a religious objection to covering abortion because that
certification would facilitate their employees in obtaining such
services.
Finally, I realize that there are many other problems with other
freedoms stemming from mandated health insurance coverage. For example,
should employers be allowed to refuse to hire smokers, or people who eat
junk food, or who drink the "Big Gulp" at fast food places? There was a
case argued before the NY Court of Appeals last week about whether the
Board of Health in New York City had the power to prohibit serving sodas
in containers larger than a specified size. But I realize this goes
beyond the list. To avoid an inconsistency argument in stating that
employers should not control the use of compensation by employees based
on the employers' religious views I mention this. I know there might be
competing considerations in other areas. And I am not taking a position
on them now.
Jon
On 2014-06-08 19:54, Volokh, Eugene wrote:
I agree very much with Tom on this point. In most controversies,
both sides are acting in ways that could plausibly be labeled as
"divisive." Government religious speech may be seen as "divisive,"
because it may alienate members of other religious groups; but
prohibitions on such speech, or litigation seeking such prohibition,
may be as divisive or more so. A pro-Hobby-Lobby decision might be
divisive, but an anti-Hobby-Lobby decision might be divisive.
Indeed,
academic criticism of a pro-Hobby-Lobby decision (or an
anti-Hobby-Lobby decision) might be divisive -- and so was the
implementation of the mandate without a broad religious exemption, as
Tom points out. The Employment Division v. Smith regime can be seen
as divisive -- but the RFRA regime, or the Sherbert regime, which
makes controversial judicially implemented religious accommodations
possible, can apparently be divisive, too.
Indeed, in my experience, most people -- I speak generally here, and
not with a focus on this list -- can easily see the potential
"divisiveness" of decisions they dislike on substantive grounds, but
don't even notice the divisiveness of decisions they think are sound.
After all, if one thinks a decision is sound, it's easy to view those
who disagree as just unreasonable, so that their feelings of
alienation don't really count (since they deserved to lose, and are
now just being sore losers).
Of course,
Eugene
Tom Berg writes:
I get those arguments, but they don't really seem to rest on a
ruling for Hobby
Lobby being "divisive"--they rest on it being (assertedly)
substantively wrong.
One could just as easily charge the Obama administration with being
"divisive"
(undermining "harmony," to use Jon's term) by adopting the mandate
in the first
place. (See Rick Garnett's piece on why arguments about divisiveness
should do
only very limited work in religion cases.)
_______________________________________________
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.
_______________________________________________
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.
