Got it -- I see the distinction. To put it in the "imposition" terms the Court used in Lee, one could say it's the difference between an "employer imposing his religious faith on his employees" (e.g., by requiring them to participate in prayer meetings contrary to their own beliefs) and an "employer imposing some of *the costs* of his religious faith on his employees" (e.g., denying them an employee benefit because of the employer's religious opposition to the benefit). Even though Lee used the former phrase, it clearly was relying on the latter concept when it explained the burden that granting an employer exemption would impose on the employee. Nonetheless, since that's the same burden on employees at issue in Hobby Lobby, it would seem like Lee should still control. Alas, I suspect a majority of the Court is not going to agree with my view on that ...
- Jim On Thu, Jun 12, 2014 at 8:37 AM, Douglas Laycock <dlayc...@virginia.edu> wrote: > One issue at a time. Yes, Hobby Lobby’s claim goes away if we accept > Marty’s argument that Hobby Lobby has a viable option to just discontinue > its health insurance plan. > > > > I was addressing a different issue. 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. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* James Oleske [mailto:jole...@lclark.edu <jole...@lclark.edu>] > *Sent:* Thursday, June 12, 2014 12:02 AM > *To:* Law & Religion issues for Law Academics > *Cc:* Daniel J. Greenwood; Douglas Laycock > *Subject:* Re: Simple Hobby Lobby question > > > > Without attempting to address the various corporate law issues being > debated in this thread, I did want to ask a more intuitive question about > this argument: > > "[An exemption for Hobby Lobby] is not an imposition of the Greens' > religion on the employees. No employee is forced to live by Hobby Lobby's > religious values; they are entirely free to buy emergency contraception > with their own money. The only people at risk of being forced to live by > other people's religious values in this case are the Greens." > > > > Given that Hobby Lobby is "entirely free to pay" the opt-out tax with its > "own money," doesn't this argument depend on finding that the relative cost > to Hobby Lobby of paying the tax is so much higher than the relative cost > to employees of purchasing the disputed contraception that only the former > can be deemed to constitute "force" or an "imposition"? And, at least with > respect to the most effective and costly of the contraceptive methods at > issue (IUDs), is it really so obvious that such a finding would be > warranted? > > Moreover, regardless of how we might decide the "imposition on employees" > question in the first instance, didn't the Supreme Court already address > the issue explicitly in its pre-Smith jurisprudence when it said that > granting the Amish employer's request for an exemption in Lee would operate > to "impose the employer's religious faith on the employees"? > > Of course, if Smith had never been decided, and if the Court today was > refining its own constitutional free-exercise exemption jurisprudence > instead of applying a statute designed to restore the Court's pre-Smith > jurisprudence, one could certainly argue that the Court should revisit the > characterization of employer exemptions in Lee. But that's not where we > would seem to be given the Smith decision and RFRA. > > - Jim > > > > On Wed, Jun 11, 2014 at 5:49 PM, Douglas Laycock <dlayc...@virginia.edu> > wrote: > > Sorry, but now you have shifted to a completely different argument. The > alleged imposition on employees has nothing to do with corporate law; that > argument would be exactly the same if Hobby Lobby were a sole > proprietorship. > > If Hobby Lobby wins, the employees will not receive a particular benefit > from Hobby Lobby, and that benefit has some economic value to those > employees who would use it. The relevance of that fact is a genuine issue. > > But it is not an imposition of the Greens' religion on the employees. No > employee is forced to live by Hobby Lobby's religious values; they are > entirely free to buy emergency contraception with their own money. The only > people at risk of being forced to live by other people's religious values > in this case are the Greens. > > On Wed, 11 Jun 2014 22:27:34 +0000 > "Daniel J. Greenwood" <daniel.greenw...@hofstra.edu> wrote: > >Corporate law is clear. Hobby Lobby’s assets do not belong to the Greens > and they are forbidden by law from acting as if they owned them. This is > true in each of their corporate roles. > > > >So either they are claiming that their own religious exercise is burdened > because they are not allowed to use property not their own in violation of > law – in which case, Free Exercise is burdened by the ordinary rules of > property, theft and fraud. How is their claim different from a claim that > Hobby Lobby need not pay its suppliers or label its goods honestly, because > they prefer to maximize profits in order to use the corporation’s funds for > religious purposes? > > > >Or they are claiming that the corporation’s exercise rights are burdened, > in which case they have transformed the Free Exercise clause into an > endorsement of Establishment: > > > >Granting Exercise rights to an organization is the same as allowing the > organization’s leaders to impose the leaders’ religious views on followers. > In my view, this is the simplest way to understand what the Greens are > demanding here -- they seek to establish their religious views in Hobby > Lobby, coercively requiring all Hobby Lobby employees to set aside personal > views in favor of the institutional view. > > > >This is not a Free Exercise claim at all. It’s just a question of > corporate law – does corporate law grant the executives, directors, > shareholders or trust beneficiaries the right to establish a corporate > religion and impose it, through contract and agency, on employees? > Corporate law is clear that neither shareholders nor trust beneficiaries > have any such right. It is less clear about executives and directors. I’m > no Free Exercise expert, but I don’t see how the right to impose your > religion on others – whether protected by state corporate law or not, and > however modified by Federal limitations on the rights of employers – could > be a Free Exercise right, and or limiting it a burden on Free Exercise. > > > > > > _______________________________________________ > 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.
