Thanks, Nelson. This is an interesting piece, and I respect the arguments on
both sides. But I have a couple of critical reactions:
1. I wonder whether it's really helpful or effective to start by dismissing an
argument as something "off the wall" that somehow, inexplicably, has gone
mainstream. The judges on both sides of this issue have advanced serious
arguments, and I'm more inclined to concentrate on their merits. Which you
ultimately do (at least on some of the issues): so for me, at least, the "it's
radical" pitch seemed simply to be preaching to the choir.
2. The meat of your argument that for-profit corporations cannot exercise
religion is that allowing their claims would raise Establishment Clause
problems because of effects on employees. But to me your argument here seems
wrong, or at least far from clear. For one thing, even if the Establishment
Clause does play a role here, that may be a reason why we can countenance
certain free exercise claims by for-profit corporations. If the Establishment
Clause is available to limit the overreach of claims based on religious
conscience-a unique limit on such claims and not on others-isn't that a reason
to be more confident that in this context society would reach an accommodation
that takes both important interests seriously?
Moreover, you say that the fact that an exemption imposes costs on third
parties is sufficient reason in itself to invalidate it under the Supreme
Court's cases. But that is not the law. The Title VII exemption upheld
unanimously in Amos could have been said to impose costs on employees. But as
Justice Brennan later explained in the Texas Monthly case, the exemption was
upheld, "though it had some adverse effect on those holding or seeking
employment with those organizations (if not on taxpayers generally), [because
it] prevented potentially serious encroachments on protected religious
freedoms." 489 U.S. at 18 n.8. The Court treats third-party effects as
something to be weighed against the seriousness of the "encroachment on
religious freedom"-an approach that makes sense, given that pretty much any
employment regulation, and therefore any exemption from it, could be said to
affect third parties. Your position, on the other hand, appears to be that
"effect on third parties" is a reason to declare that no encroachment on
religious freedom exists. If that is so, how can there be accommodations for
religious organizations?
Second, you quote Thornton v. Caldor's statement that "[t]he First
Amendment gives no one the right to insist that in pursuit of their own
interests others must conform their conduct to his own religious necessities"
(a principle that you say "matters here in a particularly powerful way"). Now,
I understand and am actually rather sympathetic to the idea that the
contraception mandate increases the ability of women employees with modest
incomes to afford contraception. But your phrasing does immediately trigger
the response that the objecting employer is not, in fact, insisting that the
employees "must conform their conduct to his own religious necessities." The
employer is not insisting that employees refrain from using contraception, or
from obtaining it by means other than the insurance coverage. (In Thornton v.
Caldor, note, the Connecticut law did actually require others to do something:
the employer had to give the employee his Sabbath off, indeed without
qualification or exception.)
There are significant questions here about the baselines from which we
determine or measure "effects on others": who is burdening whom, and which
effect is more serious on the whole, in quality or quantity? I acknowledge
that there are also line-drawing issues that would arise were Hobby Lobby to
win (the Jehovah's Witness example that Marci raises, for example). But I
don't think those questions are answered simply by invoking the fact that
exempting certain employers has some effect on employees as compared with
regulating those employers.
-----------------------------------------
Thomas C. Berg
James L. Oberstar Professor of Law and Public Policy
University of St. Thomas School of Law
MSL 400, 1000 LaSalle Avenue
Minneapolis, MN 55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: tcb...@stthomas.edu
SSRN: http://ssrn.com/author='261564
Weblog: http://www.mirrorofjustice.blogs.com
----------------------------------------------------------------------------
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe
Sent: Tuesday, November 26, 2013 2:36 PM
To: religionlaw@lists.ucla.edu
Subject: Contraception Mandate
Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting
on today's cert. grant. We emphasize three differences between these cases and
Citizens United, including the significant Establishment Clause ramifications
of ruling in favor of the corporations here. We link to important work by Fred
Gedicks developing the nonestablishment argument.
http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html
Nelson Tebbe
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