I appreciate the analysis, Mark. But don't agree that every religion gets to decide where to draw the line on responsibility for remote effects of its actions any more than I get to draw the line on proximate cause because I view it differently from Anderson and Cardozo. I don't have to agree that there is a difference between my knowing that my taxes will be spent on something and my being required to act to provide benefits to someone to do something. The "agreement" is the same in both cases--required to do something with which one disagrees. The employer buying insurance is no more agreeing to the terms of the insurance contract than to medicare funding abortion with taxes. It is imposed in the same way. Or can so be seen by the government without a right of an employer to avoid its civic responsibilities as a participant in society. Free exercise does not mean license to drop out, to not conform to civil law.
The analogous claim to exemption from providing health insurance by a religion is that of a religion claiming a right to conduct human sacrifices -- or where is the principled difference? Both are prohibited from doing something that they believe in. In both cases the civil society has decreed that such action (not providing health benefits; not killing people) is out of bounds. Just as this analogy has its weaknesses, so does the chain created by Mark. Both can be distinguished (as Mark points out in his post). But the distinction is just as convincing or not convincing -- depending on the views of the listener of what the proper scope of the right to be a unit veto on government policy is. Some employers don't like unions and think it is against their religion to bargain collectively. Some employers think it is their right to use resources in wasteful ways that damage the environment. Some employers think that working conditions with respect to safety are improper intrusions. Some employers think they should be able to discriminate on the basis of race. Some employers think they should be able to discriminate on the basis of gender. Some think they should be able to discriminate on the basis of religion. And some of those employers who think those ways cloak their beliefs in religion. Should those with the religious cloak get treated like it is a Potterish cloak of invisibility through which civil society is not allowed to see while others must be exposed to full scrutiny and the full force of civil regulation? In most instances, no. Employers are bound by the same rules whether religious or not, unless there is really a substantial burden. No one is making the employer get an abortion (or the employer's decision makers, assuming it is a corporation). Or do we push the idea that a corporation is a person so far as to make no distinctions at all, even though a corporation cannot really have an abortion? We make exceptions for religious entities, quite properly, even corporate religious entities. But requiring them to provide health benefits is too remote on the causation trail to be a substantial burden. Indeed, the whole argument of being forced to facilitate something as a violation of religion is problematic and should be used with great care. It has no logical or clear ending point. Finally, yes, Mark, I think the employer could indeed be required to pay the clinic directly without it being a substantial burden. Reverse your argument and the point becomes clear. The employer is not doing the act, is not agreeing to do the act, and is doing nothing but funding something the law requires the employer to fund. And paying money for something is not the moral equivalent of doing the thing, especially when that thing you are paying money for is something you are required to do from the outside. If I willingly hire a doctor to pay for an abortion for another, I am indeed not able to wash my hands of responsibility for the action. Indeed, it is my willingness that made the action possible (let's say). But if I am required to do so, then my responsibility is far more attenuated. If I believe in that thing strongly enough, then I should not be in business. And it is OK for society to decide where to draw the line. Steve On Sep 30, 2012, at 1:36 AM, Scarberry, Mark wrote: > 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 > > -- 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/ "If we are to receive full service from government, the universities must give us trained [people]. That means a constant reorientation of university instruction and research not for the mere purpose of increasing technical proficiency but for the purpose of keeping abreast with social and economic change. . . . Government is no better than its [people]." William O. Douglas
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