The less restrictive means would be to have the government
offer such a plan, which employees could buy from the government (or from some
other entity), without the employer being involved. After all, until recently,
employers weren’t required to provide insurance at all, though there were
substantial market pressures and tax incentives for them to do so. The
alternative would simply retain that pre-ACA system for the tiny corner of
health care spending involved in blood transfusions for employees of companies
that oppose such transfusions.
Now I certainly wouldn’t say that such an alternative is
constitutionally mandated, and I wouldn’t relish the prospect of judges
deciding, as a constitutional matter and with no possibility of legislative
override, whether such an alternative would be too expensive or burdensome on
the government. (That’s one reason I support Employment Division v. Smith as a
view of the Free Exercise Clause.) But RFRA is a Congressional judgment that
judges should generally engage in
least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to
Congressional authorization and with the possibility of a Congressional
override. So under RFRA, courts would have to consider whether this
alternative system of funding blood transfusions is indeed a less restrictive
means of serving a compelling government interest.
Eugene
From: religionlaw-bounces+volokh=law.ucla....@lists.ucla.edu
[mailto:religionlaw-bounces+volokh=law.ucla....@lists.ucla.edu] On Behalf Of
hamilto...@aol.com
Sent: Tuesday, November 26, 2013 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Contraception Mandate
I'll wait for others to weigh in on the first, but with respect to the second,
I thought the argument was that the employer can't be part of a system that
involves acts by others that violate his religious beliefs.
How does the cheap supplementary plan for transfusions solve the Jehovahs
Witness's being part of a system that
involves acts that violate his religious beliefs? Is Hobby Lobby willing to
provide a supplementary, inexpensive plan for contraception?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
http://sol-reform.com<http://sol-reform.com/>
[http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts>
[http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton>
-----Original Message-----
From: Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics
<religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>>
Sent: Tue, Nov 26, 2013 5:21 pm
Subject: RE: Contraception Mandate
I’m not Brad, but I thought I’d put my two cents’ worth in:
Brad- Is it your view that for-profit companies over 50 employees (those
affected here), who are subject to Title VII, and may not discriminate on the
basis of religion or gender,
can tailor their salary and benefit plans according to religious beliefs and
gender?
I should think that, whether the company is for-profit or
non-profit (and corporation or sole proprietorship), the ban on discrimination
might well impose a substantial burden on the employer -- if the employer feels
a religious obligation to discriminate -- but would be upheld under strict
scrutiny, no? But I take it that the case for the contraception mandate being
narrowly tailored to a compelling government interest is different from the
case for Title VII being thus narrowly tailored.
Separately, what is your view on whether a Jehovah's Witness for-profit company
can exclude blood transfusions as part of its benefits plan?
There too the question -- whether as to a for-profit or a
non-profit, and corporation or sole proprietorship -- would be whether the law
is narrowly tailored to a compelling government interest, or whether the
government has some other less restrictive means of serving the interest (e.g.,
offering what would likely be a very cheap supplementary insurance plan
covering only blood transfusions, for anyone who has such an exclusion and who
just needs the transfusions).
Eugene
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