Alan, I think you're right that the problem of burdening non-beneficiary employees could be resolved by the government providing them with full coverage (as I think Nelson Tebbe said in an earlier post). But until that happens, those employees have a claim in this litigation that hasn't yet been fully presented -- and one that, as Gedicks argues, constrains permissive accommodations (including RFRA).
I should add that government coverage for non-beneficiaries might not solve all the possible Establishment Clause problems with a religious exemption. If there are non-religious employers who object to covering, e.g., abortifacients, they might claim that a religious exemption treats them unfairly. And depending on how the costs sort out, I suppose it's possible that there might be complaints from non-exempted employers (as in Texas Monthly). Micah On Dec 2, 2013, at 2:49 PM, Alan Brownstein wrote: > Micah, if the issue is diffusing the burden so that it doesn't fall on a > limited class of identifiable individuals, why isn't that problem solved by > the government taking over the task of providing insurance coverage for the > employees of exempt organizations. Isn't the government a sufficiently > effective cost-spreader to resolve this concern? > > Alan > > > Eugene's suggestion that the religious exemption from the contraception > mandate be analogized to the draft protester cases is anticipated by Gedicks > and Van Tassell in their article, RFRA Exemptions from the Contraception > Mandate: An Unconstitutional Accommodation of Religion > (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516). > > Gedicks and Van Tassel argue that the burden of the exemption is not material > because it would not affect the decision-making of non-pacificists in > considering whether to participate in the draft. That is because the burden > is minor and remote -- for any individual, a small number of exemptions > amounts to a minor increase in the probability of being selected for the > draft. > > Whethers Gedicks and Van Tassel are right, there is at least the difference > that the burden of the religious exemption from the contraception mandate, > like the burden in Caldor, falls clearly and specifically on identifiable > individuals. > > > > > _______________________________________________ > 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.
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