Let me try out another hypo, closer to the facts of Zubik, to see what people's reactions are. As I understand it, what the government and Doug are proposing is that the Court establish another bright-line rule, akin to the one the Court developed in *Bowen *and *Lyng*, excluding a certain category of claims from being deemed "substantial burdens" *as a matter of law*, without regard to whether the plaintiff sincerely believes that the law compels her to impermissibly facilitate sinful conduct.
The new proposed rule is something like this: Just as one cannot challenge the government's own internal conduct, no matter how much it *actually impinges *on one's exercise of religion (*Bowen*)--indeed, even where it might render that exercise impossible (*Lyng*)--so, too, the Court should hold that Party A cannot challenge a legal relationship *between the government and a third party (Party B--here, the insurance company)*, and seek to prevent that relationship in a way that would frustrate the government's ability to further its interests, *even if *Party A sincerely believes that its preexisting relationship with Party B (i.e., the employer's contract with the insurer, and, here, the insurer's access to employee information) contributes to sinful conduct in a way that makes Party A morally culpable. Let's take a case where the government deals directly with Party A's employees, such as a single-payer system--or, better yet, the "alternatives" that the petitioners in Zubik have themselves suggested, in which women whose employers do not allow contraception coverage would receive it instead from the government, either directly or through an exchange plan that the government would subsidize. Say that, in such a system, the government requires information from the women or their employers in order to make the system work--such as proof of employment; proof that they are not already receiving the benefit; info about income; info about preexisting relationships with physicians under the employer plan; etc. The law therefore either requires the employer to provide such employee-specific information directly to the government, or requires the employees themselves to provide the information, which they possess *only by virtue of their pre-existing contractual relationship with the employer*. The employer complains that the conveyance of that information to the government, which allows the government to more efficiently implement the "single-payer" option, would make *it *(the employer) complicit in the employees' eventual use of contraception (or nonprocreative sex), by "facilitating" the government's ability to provide reimbursement to the employees. As I understand it, the USG/Laycock argument would say that there is no substantial burden in such a case *as a matter of law*, regardless of whether the employer's claim of complicity is sincere. Thoughts? Would this really be very different from what the Court did in *Bowen* and *Lyng* themselves? > *From:* Michael Peabody <mich...@californialaw.org >> <http://redir.aspx?REF=kb8x155Y4612-3rkofowQ0keE76Odzov_nF2M6R0_UZLySXg8VHTCAFtYWlsdG86bWljaGFlbEBjYWxpZm9ybmlhbGF3Lm9yZw..> >> > >> *To:* religionlaw@lists.ucla.edu >> <http://redir.aspx?REF=ZsKmce7Yorqp9SDXUoMwH39EerjrEv2G2BQ_-HlF2cdLySXg8VHTCAFtYWlsdG86cmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.> >> *Sent:* Monday, March 21, 2016 4:35 PM >> *Subject:* Zubik / Little Sisters - testing the scope via a hypothetical >> >> >> The Supreme Court will be hearing these cases on Wednesday and I'm >> trying to figure out how broadly this may affect religious >> accommodation beyond the ACA cases. Most of the briefs in favor of the >> petitioners describe broad sweeping "attacks" on religious freedom >> while the respondents seem to argue that the built-in accommodation >> should be considered sufficient. >> >> In an effort to try to explain this to non-lawyers (of which many are >> Seventh-day Adventists) who are asking me about what this case means, >> I've come up with a hypothetical that I'm >> presently testing out. In making this hypothetical, I make an >> assumption that RFRA was originally intended to protect individuals >> (not institutions) to avoid the post-Hobby Lobby reaction that it is >> now about organizations and I am relying on a federal regulation model >> to avoid jurisdictional confusion. I do realize that my hypothetical >> involves an employer-employee relationship, but I tried to manage this >> angle by making the closing time a function of a bill passed by >> Congress than an employee scheduling issue. >> >> Here is the hypothetical: >> >> A Seventh-day Adventist is a federal employee who works as the manager >> of a gift shop in a remote national park. As part of a bill designed >> to encourage people to visit the parks, Congress requires that all >> park gift shop facilities remain open until 6:00 p.m. For our >> Seventh-day Adventist, this poses a problem in the winter months as it >> violates her religious beliefs to work past sundown on Friday. The >> EEOC guidelines suggest an accommodation that would work (swapping >> shifts with co-workers) and a co-worker is willing to fulfill the >> duty, and other accommodations such as shifting positions are simply >> not possible. >> >> The Seventh-day Adventist refuses to swap shifts because she believes >> that this would make her complicit in a sinful act. In fact, she >> refuses to even acknowledge that such an accommodation is possible >> because by admitting that, she would be opening the door for somebody >> to attempt to fulfill the accommodation which would violate her >> religious beliefs. >> >> >> Could a finding for the petitioners in these cases permit this and >> similar scenarios? Is there a better hypothetical? >> >> Thanks! >> >> Michael Peabody, Esq. >> ReligiousLiberty.TV >> http://www.religiousliberty.tv >> <http://redir.aspx?REF=TmS8qv-bNWqnPt5cgJ7k5f-XZpMc4097_Xo0f0Tkya1LySXg8VHTCAFodHRwOi8vd3d3LnJlbGlnaW91c2xpYmVydHkudHYv> >> _______________________________________________ >> To post, send message to Religionlaw@lists.ucla.edu >> <http://redir.aspx?REF=2N9K2q5LNTd0LELn49RJiOU4rbIiQCPSMgYyJPBdTDxLySXg8VHTCAFtYWlsdG86UmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.> >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> <http://redir.aspx?REF=I3mZq_YdZocXEX1HTNURY_MrMz6g8yPXmORvRB5OLx5LySXg8VHTCAFodHRwOi8vbGlzdHMudWNsYS5lZHUvY2dpLWJpbi9tYWlsbWFuL2xpc3RpbmZvL3JlbGlnaW9ubGF3> >> >> 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 >> <http://redir.aspx?REF=2N9K2q5LNTd0LELn49RJiOU4rbIiQCPSMgYyJPBdTDxLySXg8VHTCAFtYWlsdG86UmVsaWdpb25sYXdAbGlzdHMudWNsYS5lZHU.> >> To subscribe, unsubscribe, change options, or get password, see >> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >> <http://redir.aspx?REF=I3mZq_YdZocXEX1HTNURY_MrMz6g8yPXmORvRB5OLx5LySXg8VHTCAFodHRwOi8vbGlzdHMudWNsYS5lZHUvY2dpLWJpbi9tYWlsbWFuL2xpc3RpbmZvL3JlbGlnaW9ubGF3> >> >> Please note that messages sent to this large list cannot be viewed as >> private. 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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" ( Wm. B. Eerdmans Pub. Co., 2014)) >> My SSRN papers are here: >> http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg >> >> This e-mail message from Alliance Defending Freedom and any accompanying >> documents or embedded messages is intended for the named recipients only. >> Because Alliance Defending Freedom is a legal entity engaged in the >> practice of law, this communication contains information, which may include >> metadata, that is confidential, privileged, attorney work product, or >> otherwise protected from disclosure under applicable law. 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