I was responding to Professor Greenwood’s rhetorical flourish, which others
have also indulged, about how Hobby Lobby is imposing its religious views on
its employees. The legal significance of that rhetoric, and of correcting it,
may be marginal. It at least means that the employees do not have a
countervailing RFRA claim or a Title VII religious-accommodation claim.
But harm to third parties, or any sort, is relevant to the analysis at the
compelling-interest stage. There is also a baseline question: Hobby Lobby is
not affirmatively inflicting harm, but refusing to provide a benefit.
And yes, employers can burden their employee’s religious practice, as lots of
Title VII cases illustrate.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Graber, Mark
Sent: Thursday, June 12, 2014 11:54 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Simple Hobby Lobby question
Doug Laycock writes:.” Any burden on the employees is economic. They are not
forced to adopt Hobby Lobby’s religious views, live by Hobby Lobby’s religious
rules, or violate the rules of their own religions. But if Hobby Lobby is
forced to pay for contraception coverage, the burden is religious. Only Hobby
Lobby and the Greens are at risk of being forced to live by some other
religion’s view of the matter and to violate the rules of their own religion. “
Two questions.
First, could Hobby Lobby as a conceptual matter ever impose a religious burden
on their employees. After all, no one is forced to work for Hobby Lobby, so
even if Hobby Lobby insisted that all employees worship a golden calf, the only
burden would be economic (i.e., the benefits of working for Hobby Lobby as
opposed to being unemployed or having another job). (this is not a legal
question concerning whether such a burden is constitutional, but a conceptual
question about whether such a burden is religious or economic).
Second, assume that Hobby Lobby can as a conceptual matter impose religious
burdens on their employees, do religious burdens have a different status than
economic burdens. Suppose, for example, a Hobby Lobby employee makes a
compelling factual case that a) their religion both requires sexual activity (a
reasonable interpretation of Jewish law for married persons) and contraception
where the marriage partners cannot afford any or another child and b) they
cannot afford contraception unless it is offered by the employer’s health care
plan. Different result? I admit this is a far-fetched hypothetical, but I
suspect we can quickly develop more realistic examples if religious burdens are
conceptually possible.
MAG
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