I will try to write more clearly since so many posts seem to me at least to be ships crossing at night.
I think it would help if we distinguish three things. There are burdens on religious liberty which may not require justification under statutory law or constitutional law but which might justify discretionary accommodations. That, after all, is what the Obama administration has done with its revised regulations. Here I find the suggestion that we should only provide accommodations to religious individuals with the fortitude to maintain their faith against significant duress to be strikingly inconsistent with the way we think about dignitary interests and rights in other contexts. Rights and legislative respect aren't just for the strong. They aren't reserved for heroes and martyrs. They apply to the rest of us as well. There are also "substantial burdens" that impose a burden of justification under either statutory or constitutional law. Here, as Eugene as already noted, there is free exercise case law that characterizes the payment of taxes that the believer understands to violate his religious obligations as a substantial burden. There is also Establishment Clause case law that for decades has recognized a taxpayer's religious liberty interest in not having taxes used for religious purposes. (Historically, earmarked taxes were the core problem here.) One can challenge both lines of authority, but they certainly suggest a range of legitimate understandings of what constitutes a substantial burden on religion. Finally, there is the question of whether the state can justify the imposition of a substantial burden on religion (typically by explaining of the importance of the interests furthered by denying an exemption and the lack of alternative means to accomplish that goal.) I noted in my earlier post that the state has strong justifications for denying tax exemptions in many cases. But this regulation isn't a tax. Moreover, the allegedly modest cost for providing the disputed coverage that Marty describes cuts both ways. It suggests that the state's interest in imposing this mandate on religious institutions can be achieved at little cost through alternative means. Alan From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu]<mailto:[mailto:religionlaw-boun...@lists.ucla.edu]> On Behalf Of Marty Lederman Sent: Tuesday, February 14, 2012 4:30 AM To: Law & Religion issues for Law Academics Subject: Re: Contraceptives and gender discrimination Well, if Alan is right that there is a "substantial burden" every time tax dollars are used by the state on something proscribed by someone's religion, then the "substantial burden" component of RFRA is simply an empty vessel -- or, in any event, it will be satisfied regularly in countless ordinary instances of all states' (and the federal government's) spending programs. I don't think that can be right. The question, instead, is whether the compelled taxation itself substantially burdens the exercise of one's religion. I assume the answer to that is generally "no," because religions traditionally have not treated such civil obligations of payment as implicating serious moral injunctions imposed upon the religious taxpayers, seeing as how the decision to apply the money to the activity in question is always mediated, often several times over, by the choices of others (e.g., legislators, government bureaucrats, private parties who are given the option of using the funds for various forms of health care, etc.). OK, but then Alan asks: What about if the tax itself is "earmarked" specifically for expenditure on the proscribed purpose? Good question -- I wonder how many religions would see that as raising a materially different problem of complicity by the feepayer or taxpayer than in the case of the general tax. Not many, I suspect, but perhaps I'm wrong. (I'd greatly welcome Catholic and other religious perspectives on this question -- it's relevant to something I'm working on.) But thankfully, we don't have to resolve that question here, since the cost to the employer of sponsoring a health insurance plan is not "earmarked" for contraception -- anything but. The total collective expenditure by the insurance company on employees' contraceptives will be a drop in the proverbial ocean, since contraceptives are but one, woefully insignificant and relatively inexpensive, covered service among countless others, many of which are very, very expensive. Indeed, I'd be surprised if the inclusion of contraceptive coverage affects the cost of sponsoring the insurance plan (the employer's share of the premium, which I don't believe would be compelled by federal law, in any event) at all -- not worth the dime, so to speak.
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