In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December:
> Braunfeld might support Marty's argument. The government provides an option > to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't > burden religion, and even if it's somewhat more expensive, Braunfeld seems to > contemplate that laws will sometimes work in this way. Provided a law doesn't > directly compel anyone to violate their religious beliefs, its imposition of > additional costs on religious practice is not sufficient to show a > substantial burden. > > Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And > maybe there are other problems with the analogy, but I wonder if the "no > employer mandate" argument turns on an empirical claim, at least if the cost > differentials are not so significant as to be tantamount to coercion -- as in > the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): > 15 JUSTICE KAGAN: Well, let's say that that's > 16 right. Let's say that they have to increase the wages a > 17 little bit. I mean, still we are talking about pretty > 18 equivalent numbers. Maybe it's a little bit less; maybe > 19 it's a little bit more. But this is not the kind of > 20 thing that's going to drive a person out of business. > 21 It's not prohibitive. > 22 It's like the thing that we talked about in > 23 Braunfeld where we said, you know, maybe if the store > 24 can't stay open 7 days a week, it makes a little bit > 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman <lederman.ma...@gmail.com> wrote: > is here: > > http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf > > Audio should be available later in the week. > > I'd be curious to hear what others who attended thought of the argument. > > I'll mention only three things of particular note: > > First, several of the Justices, including Justice Kennedy, appeared to be at > least somewhat sympathetic to the argument I've been stressing that the > employers' religion might not be substantially burdened because they have the > option of not offering a plan (which might well save them money). > > Second, there appeared by the end of the argument to be a very real > possibility of a judgment that the government must advance its interests > through the less restrictive means of offering its secondary accommodation > (payment required of the issuer or the TPA) to for-profit corporations, as > well. This idea seemed to have traction with Justices of varying > perspectives, and neither advocate resisted it much -- indeed, Paul Clement > appeared to go out of his way in rebuttal to encourage it, and to stress that > he had hinted at it on page 58 of the Hobby Lobby brief. > > Third, Justices Alito and Scalia tried to argue that RFRA goes much further > than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there > are five votes for that. > _______________________________________________ > 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.
