A thoughtful response, Nelson and Micah, to an equally thoughtful post, Tom.
So here are my questions, Nelson (and Micah and Marci etc.) Let's assume the cost of medical contraceptive coverage is $300 per year (a totally made up number). 1. If a religious employer (individual or corporation) as a matter of conscience objects to paying this amount to buy medical contraceptive insurance coverage for his employees, would it eliminate (or at least move from substantial to insubstantial) the burden on the employer's religious liberty if the employer was given an option to spend the $300 on another public good that was fully consistent with his faith (medical care for veterans, for example)? This would be an accommodation similar to the one offered to conscientious objectors who are required to do alternative (peaceful) service instead of military service. 2. If the government spends $300 (more or less) to buy medical contraceptive insurance coverage for the employees of religious employers who do not receive such coverage from their employers because the employer elects to spend the $300 on the alternative public goods identified in the religious accommodation, would that satisfactorily resolve the health and gender equity concerns that the government asserts to justify the medical contraceptive coverage mandate? 3. If the answer to questions 1 and 2 are "yes", why isn't this kind of an accommodation a less restrictive alternative (an alternative that is less burdensome to religious liberty) that adequately furthers the government's compelling interest in creating the mandate? Happy Thanksgiving to all! Alan -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Wednesday, November 27, 2013 6:07 AM To: religionlaw@lists.ucla.edu Subject: Response to Tom Berg (and others) Tom: Thanks so much for engaging with the piece so generously and skillfully. It's heartening that the Establishment Clause issues are finally getting an airing-our only worry is that it may be too late for a proper briefing before the Supreme Court. But maybe some members of this list can help rectify that situation. Here are some responses to some of your points. We have doubts about whether the Supreme Court has articulated the third-party-burden test for religious accommodations as a balancing analysis. Maybe it has, but alternatively, the language in Cutter, Texas Monthly, and Amos could be read to carve out a categorical limit on legislative accommodations. Either way, however, burdens on third party nonbeneficiaries that were negligible would not pose an Establishment Clause problem. We also question whether all religious accommodations necessarily do impose burdens on third parties. How does allowing inmate access to religious literature despite prison mail regulations in Cutter burden secular inmates? It could be seen as unfair, as the Sixth Circuit held in that case, but not because it imposes a burden. The same could be said of religious garb in prisons. So a categorical rule against significant impositions on third parties would not eliminate all religious accommodations. Here, in any event, the burdens on third parties could be significant. Women who otherwise would be entitled to contraception coverage stand to lose some or all of that coverage, thereby imposing a real cost on them. We actually read Caldor to support that view-after all, the employer there could have found workers to cover for Sabbath observers; it just would have cost a lot. That's what we are talking about here, too. Does the loss of a benefit count as a burden, no matter how large the difference in cost, or is it simply the non-receipt of a benefit? Of course, that is the baseline question, and such questions can be tricky, as you note. But we don't see a devastating baseline problem in this case. Even if Hobby Lobby wins, women working at corporations owned by secular people and religiously-affiliated nonprofits like universities and hospitals will receive the coverage. Obamacare alters reasonable expectations and legal entitlements, just as many welfare-state programs and civil rights laws do. (Interestingly, even Hobby Lobby itself was providing such coverage before this controversy erupted and the company realized it had been doing so, so there may be historical support for the baseline as well.) We think the loss of a costly benefit like this one counts as a burden, and potentially a serious one. You point out that the provision of Title VII upheld in Amos did impose significant burdens on third parties, such as the employees who were discharged on religious grounds in that case. That's right. But in Caldor, a case decided only two years earlier with the support of many of the same Justices who signed on to Amos, the Court held that burdens on nonbeneficiaries were too great. What explains the difference? We think the answer has to be that Amos concerned the associational integrity of a church itself, while Caldor concerned a for-profit corporation. *That's* what Brennan meant when he said in Texas Monthly that the Title VII exemption "prevented potentially serious encroachments on protected religious freedoms." While we ourselves might not endorse that carve out for churches, it reconciles the two outcomes. And it means that the Court will be concerned when accommodations for profit-seeking corporations owned by religious people impose serious costs on employees, as! they may well here. At the very least, we should have the conversation. Stepping back, you say that society will strike the right balance between free exercise and nonestablishment interests. Probably you mean that courts will adjudicate RFRA correctly, without the need for constitutional intervention. Yet until now, the nonestablishment side of the leger has gone almost completely unnoticed in the litigation. Now that it has come to light, we hope it will tip the balance (in cases that have closely divided the circuit courts) toward protecting women. We'd like to briefly respond to an issue raised by Eugene and Alan as well. Although we aren't prepared to take a definitive position at this point, we are inclined to agree that nothing much should turn on whether owners have adopted the corporate form. After all, the D.C. Circuit performed a strong RFRA analysis after rejecting the idea that corporations as such can claim the protection of that law. And nonprofit employers raise many of the same concerns (except that here the regulations protect female employees from loss of benefits). So the difference in legal form probably should not be decisive alone. But, on a realist approach, it also is not enough to say that the corporation is closely held. As Alan suggests, the size and social significance of the operation is also crucial. Hobby Lobby itself is closely held, and yet it employs 13,000 people in 500 stores. That should be an important factor, in addition to whether the corporation is closely identified with its owne! rs. Nelson and Micah _______________________________________________ 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.
