Dear Alan and Chip - Your conversation is (natch!) insightful and helpful. For what it's worth, it is not clear to me (putting aside things the Supreme Court may or may not have said or meant) that either the Establishment Clause or whatever theories of church-state relations and religious-freedom-under-law our Constitution reflects disallow accommodations that "impose[] substantial costs on . . . the public."
Why should we regard it as an "establishment" of religion for the government to decide - that is, for (a majority-ish of) "us" to decide that it is "worth it" to structure an otherwise generally applicable regulatory-and-spending regime in such a way that its operation does not impose avoidable burdens on religious exercise, even when the "expense" the community is real? (To ask this is different, it seems to me, than to ask about accommodations that take the form of lifting a burden from A and moving it, directly and particularly, to B. I had understood the Gedicks et al. objection to Hobby Lobby's RFRA claim to be asking about these.) I agree, certainly, that "religion is different" but it seems to me that this difference is reflected *both* through the rule against "establishments" (and I know we would disagree about precisely what constitutes an "establishment" and what does not) *and* through an admittedly not-uniform tradition (even if not through Free Exercise Clause doctrine) of accommodating religion, religious objections, and religious exercise when it's possible to do so. In our tradition, I think, "religious freedom" is not just a private benefit - something that is conferred on particular beneficiaries - but also a public good - something we are, as a political community, allowed and even encouraged to pursue, promote, and if necessary pay for. Do you disagree, or am I reading too much into Alan's mention of "the public"? All the best, Rick Richard W. Garnett Professor of Law and Concurrent Professor of Political Science Director, Program on Church, State & Society Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) rgarn...@nd.edu<mailto:rgarn...@nd.edu> To download my scholarly papers, please visit my SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://mirrorofjustice.blogs.com/> Twitter: @RickGarnett<https://twitter.com/RickGarnett> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Friday, February 21, 2014 1:22 AM To: Law & Religion issues for Law Academics Subject: RE: recommended Hobby Lobby posts These are very helpful responses, Chip. Let me try to use them to identify and clarify where I think we agree and disagree. 1. I agree that Religion is different and the Establishment Clause is part of what makes it different. The fact that free speech doctrine requires government to allow the exercise of a right even when doing so imposes substantial costs on third parties or the public does not mean that religious accommodations can impose a similar magnitude of costs on third parties or the public without violating the Establishment Clause. I also agree that the Establishment Clause limit is hard to identify, but it is certainly there and operates as a constraint on accommodations. But my example wasn't intended to suggest that the magnitude of costs acceptable in free speech cases parallels the magnitude of permissible costs for Establishment Clause purposes. My point was that the way we measure costs should operate the same way for both free speech and Establishment Clause purposes. In both cases, harm should be evaluated by determining the cost of mitigation, not by evaluating the cost of unmitigated consequences. If a religious group was going to engage in an unpopular ritual -- an animal sacrifice, for example -- and the state wanted to prohibit it from doing so to avoid disorder, property damage etc. caused by people who wanted to stop the ritual from happening, the state's interest in a RFRA type case should be measured in the same way it would be measured in a free speech case -- by determining the cost of providing sufficient police to maintain order. Costs that are tolerated under the free speech clause may violate the Establishment Clause, but we ought to measure them the same way. 2. Here is where we disagree. I don't think the fact that the government is unwilling (or is too politically dysfunctional) to adopt a less restrictive alternative allows the state to satisfy strict scrutiny review by insisting that otherwise feasible less restrictive alternatives are not politically available. Consider my prior example about an unpopular speaker. Suppose the state asserts that it has a compelling state interest in avoiding the disorder that will result from the speaker's public speech. Assume further that a court determines that a less restrictive way to further that interest without silencing the speaker is to provide adequate police protection to the unpopular speaker to maintain order. I don't think the state's attorney can insist that it has to be allowed to silence the speaker because the city council would never authorize police overtime to protect a speaker with such odious views. I just don't see how a less restrictive alternative test can be meaningfully applied if political unwillingness to adopt a less restrictive alternative will be taken to mean that the less restrictive alternative is unavailable and should not be considered by courts. If the Court finds in favor of Hobby Lobby, I think it basically holds that if government wants to provide contraceptive insurance coverage for the employees of religious employers, it has to choose some way to do that other than by substantially burdening the religious liberty of the religious employers. I don't think that application of RFRA violates the Establishment Clause. I think it leaves the government with several policy choices that avoid violating the Establishment Clause. From a policy perspective, there is only one good choice -- providing an alternative source of insurance coverage. I think the other choices range from bad to terrible -- amending RFRA to exclude the contraceptive mandate, expanding RFRA to include non-religious objectors (which might mitigate Establishment Clause concerns), repealing the contraceptive mandate etc. But I don't see how applying RFRA in a way that leaves the government with these alternatives violates the Establishment Clause. Given how much I favor the mandate on policy grounds, I wish I did. But I don't. 3. I agree the lines are not bright. But that may be the limit of our agreement here. Caldor and Amos as well as Harding all involve employment in one way or another. And I don't read any of these cases (or Cutter) as suggesting than any accommodation that imposes more than de minimis costs on third parties violates the Establishment Clause. You are right that I don't like the de minimis standard used in Title VII cases. But that is a statutory standard which does not reach the limit of what the Establishment Clause permits. Several states, including California, have workplace accommodation statutes that provide greater protection to religious employees, and correspondingly impose potentially higher costs on employers, than Title VII. Is it your view, Chip, that these state statutes violate the Establishment Clause? Moreover, and here is another place where we probably disagree, I don't really consider the contraceptive mandate to be a regulation of employer-employee relations, like the employment discrimination provisions of Title VII or various labor law statutes. I think the Affordable Care Act is a health insurance law, not an employer-employee relations law. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans whether they are employed or not. Employers are used as a conduit to achieve that health insurance objective for some Americans-- but that is incidental to the ultimate purpose of the legislation which is aimed at all Americans, not just employees. If the contraceptive mandate is viewed as a part of the massive government involvement in arranging for the provision of affordable health care, at least some of which -- through the expansion of Medicaid -- involves the government providing health care coverage directly, it doesn't seem particularly assymetrical to me to suggest that the government itself should shoulder the burden of providing contraceptive insurance coverage to the employees of religious employers. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Thursday, February 20, 2014 3:44 PM To: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts Very good questions, Alan. Three replies (in reverse order of your questions): 1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas Monthly, and Amos, the lines here are not bright. How much cost-shifting is more than the Establishment Clause will tolerate is a matter of degree. The beauty of "de minimis" as the line is 1) it comes from a relevant body of law, related to employer-employee relations, 2) it therefore arrives with legal momentum and quantitative precedent; and 3) it offers symmetry between employees and employers re: how much cost each can impose on the other. (Alan, you might prefer the Title VII standard for religious accommodation to be more generous to employees than "de minimis." But that's not the law.) Chip On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein <aebrownst...@ucdavis.edu<mailto:aebrownst...@ucdavis.edu>> wrote: With regard to Jim's post (and Chip and Bob's piece), I appreciate the argument that in employment cases RFRA should be interpreted the same way that Title VII has been interpreted --- essentially denying all RFRA claims that would impose more than de minimis costs on third parties or the public. But I have several questions about it. First, if we accept Chip and Bob's argument that accommodating Hobby Lobby would impose significant and serious costs on third parties, resolving this case against Hobby Lobby doesn't require an interpretation of RFRA that is as limiting as the one that they propose. Aren't there harms that are more than de minimis, yet not sufficiently costly to justify the substantial burdening of religious liberty? Second, exactly why should the scope of RFRA be so drastically constrained in employment cases? What distinguishes these kinds of cases from other accommodation cases - many of which will also impose some costs on third parties, the state, or the general public? Third, many commentators have argued that the cost of accommodating Hobby Lobby should be construed to be the cost of the government setting up an alternative insurance framework for providing contraceptive coverage for the employees of religiously exempt employers. The literal cost of doing so may not be very high. There are ways of conditioning the granting of any accommodation to offset whatever those costs may be to a considerable extent. Providing insurance coverage would not require administratively complex, individualized interventions by the government. And, for many of us, the government providing health care coverage is the most desirable and efficient way of extending health insurance coverage in our society in the first place. The use of employers as a conduit for providing coverage provides few if any advantages in comparison to a government insurance program. So if we are focusing on the cost of accommodating Hobby Lobby, why isn't this the cost we should be evaluating. Typically in other rights contexts, we focus on the cost of mitigation, not the potential harm of unmitigated consequences. Thus, if an unpopular speaker wants to speak in a location where his message is likely to poorly received, the government cannot silence the speaker on the grounds that allowing him to speak would cause disorder and damage to property or persons. Instead, the harm would be the cost of hiring sufficient police and public safety personnel to maintain order at the event. Typically, except in the most egregious cases, the government does not have a compelling state interest in avoiding those financial costs of mitigation. Alan -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
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