So suppose the law specifically required the employer to pay directly to a clinic its charges for an employee's abortion. The employee has an abortion at a clinic, tells the clinic to send the bill to the employer, and the employer then must pay the bill on pain of fines that will put the employer out of business. The employer is a practicing Catholic who follows the Church's teachings. Is this a substantial burden on the employer's exercise of religion? Will anyone argue that this is not? Now what if the law is changed to require the employer to buy insurance for employees that specifically and only covers abortion procedures?
And now what if the law is changed to require the employer to buy health insurance that covers lots of health costs and also covers abortions? Can we say that there no longer is a substantial burden on the employer's exercise of religion because now the employer is required to do more? Of course there is a long history of careful, thoughtful moral analysis that treats the directness of a person's involvement in an action as a key indicator of the person's moral responsibility for it. It is not idiosyncratic at all for the employer to believe that he or she is being coerced into violating religious conscience by being required specifically to subsidize an activity that he or she believes is wrong, and, even worse, by being required to agree specifically to subsidize that activity by entering into a contract providing for it to be subsidized. This is not at all the same thing as paying a salary that an employee may use in a way that the is contrary to the employer's religious beliefs (for example, obtaining an abortion). The payment of the salary does not require the employer to agree specifically to subsidize that activity. But by entering into a health insurance contract that specifically covers abortions, the employer does so agree and is, according to a very reasonable moral analysis, complicit. If you pay taxes, you do not have to enter into an agreement that your money may be used to wage war or to pay for other things that you could not, as a matter of religious conscience, be involved in. The government requires you to pay the taxes, and then the government decides what to do with the money, with no need for you to agree at all. Same for payment of a salary that the employee may use as the employee chooses. You do not have to agree that the employee may obtain an abortion, nor do you pay the salary to allow the employee to obtain the abortion; you are not complicit. The court in this case in effect chose its own version of moral casuistry, and decided that an action that would not, on the court's view, create complicity in an action, could not as a matter of law burden the employer's exercise of religion. That is the same as the court deciding that a tenet of the employer's religion is false, because the moral analysis that leads to the conclusion of complicity is part of the employer's religious beliefs. Of course the finding of a substantial burden does not end the analysis. If we assume that the govt interest is compelling, we have to ask whether the govt can accomplish its purposes without violating the religious conscience of the employer (or the taxpayer); is the government using an approach that minimizes the imposition on religious conscience (the least restrictive means requirement of RFRA)? The government could not function if every taxpayer had a veto over how his or her taxes were used. But a health care system can cover abortions or whatever procedures the govt wants to cover without requiring religious people to agree specifically to subsidize what they consider to be religiously prohibited. Employers who refuse to buy health insurance for employees that cover such procedures can be taxed for not doing so, in an amount that is sufficient to allow the govt to provide supplemental insurance policies to employees who want them. The employer may not like having to pay a tax that could be seen to subsidize an activity with which he or she disagrees on religious grounds (though money is fungible and thus it isn't clear that this tax money is being used to pay for abortions). But under this approach the employer is not forced to violate his or her religious conscience by agreeing to subsidize the activity. A few employers may believe payment of such a tax violates their religious conscience; if so, they can refuse to pay the tax, and the govt can use its normal coercive means to collect an unpaid tax. Unless the employer believes that armed resistance is required (consider a tax to subsidize slavery), even such an employer's religious conscience will not be violated when the tax is taken. Note that there is a real imposition on religious freedom when a person is required to agree specifically to subsidize an action that violates the person's religious conscience. This is analogous to Barnette; you can be required to pay taxes to support a government you consider to be illegitimate, but you cannot be required to agree to support it; you cannot even be required to say that you agree to support it. Brad is right. Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar Sent: Saturday, September 29, 2012 8:50 PM To: Law & Religion issues for Law Academics Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate I find the court's argument strong here. You pay a salary, you pay FICA, you pay unemployment insurance, you pay pension benefits, you pay vacation time, holidays, and so on. And you provide health insurance benefits. Some of those who have health insurance will use contraceptives. Just like some will use their salaries for gambling, or fornication, or contraception, or alcohol, or illegal drugs, or whatever else the religion of the employer thinks is wrong. Health insurance is a benefit like any other, for purposes of this analysis. Steve On Sep 29, 2012, at 11:11 PM, Brad Pardee wrote: Second, they state, "[T]he contribution to a health care plan has no more than a de minimus impact on the plaintiff's religious beliefs than paying salaries and other benefits to employees." The parallel is false, though. There are no limitations on what an employee can do with his salary (apart from things that are illegal on their own, i.e., drugs). A health care plan, however, is not open-ended. It lays out specifically what the plan pays for and how much. Certain procedures are covered. Certain procedures are not. Using certain providers will result in a different deductible or copy than using others. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)
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