Alan, Like you, I haven't given a lot of thought to how the free-speech conundrum might play out in the contraceptive mandate cases, but back in the 90s I gave some general thought to the free-speech objection to constitutionally compelled exemptions. I've copied below what I wrote then about the issue, which I think stands up okay in terms of how the compelling state interest test could account for free speech interests. I did not, however, address the case you raise of conduct that we don't normally think of as primarily expressive, but that might take on an unusually expressive component in some circumstances (as might be happening in the contraceptive coverage cases).
By turning what could be viewed as non-expressive-conduct cases into high-profile political causes, are advocates for religious objectors actually making it more likely that granting exemptions to their clients would constitute unconstitutional viewpoint discrimination? Perhaps, but my guess is that the Court wouldn't go there. Assuming the Court were to get past the "for profit" and "burden on employee" barriers (which I suspect it won't, relying upon Lee and parallel undercurrents in freedom of association cases), and reach the free speech issue, I'm inclined to think the Court would likely conclude that (1) RFRA was not intended to relieve burdens on viewpoints, but instead relieve burdens on conduct, (2) an exemption in the contraception cases primarily relieves burdens on conduct, and (3) if future cases aise involving primarily expressive conduct, "appropriate balancing" under the compelling interest test could lead to the denial of religious exemptions to avoid viewpoint discrimination. - Jim Excerpt from *Undue Burdens and the Free Exercise of Religion: "Reworking a Jurisprudence of Doubt"*: Professor William Marshall has argued that to recognize constitutionally compelled exemptions is to create a First Amendment paradox: Marshall contends that reading the Free Exercise Clause to require preferential treatment for religion violates principles of free speech and equal access. Marshall uses the example of a state fairground regulation that requires all groups wishing to solicit to do so in certain limited areas. If the state must exempt a religious group from the regulation and allow it to approach people throughout the fairgrounds with its message, Marshall argues that the principle of equal access to the marketplace of ideas is violated. In this instance, Marshall is no doubt correct. However, his example does not mean that all religious exemptions are illegitimate. Rather, when the exemption sought implicates the free speech rights of others, the state could deny the exemption and assert a compelling state interest in maintaining equal access to the marketplace of ideas. Yet, if the activity sought to be protected was of a more private nature, as in the Yoder and Smith cases, there would be no such reason to deny an exemption. Marshall rejects this conclusion, noting that it would be extremely odd to provide less protection for religious speech than for other religious activity. While this response is understandable, it fails to recognize the simple reality that preference for public religious speech is more likely to implicate the rights of others than is preference for private religious activity. Furthermore, Marshall's focus on the speech context is somewhat misleading given that most religious claims for exemption since Sherbert, at least at the Supreme Court level, have not implicated the rights of others to enjoy equal access to the marketplace of ideas. In the end, Marshall's concerns only highlight the need for a free exercise rule that balances competing First Amendment interests in a principled manner. Just as a properly applied "undue burden" test will enable the Court to strike an appropriate balance between equality of treatment and special protection, the "compelling state interest" test will allow for a reasoned weighing of free speech values when they are implicated by claims for religious exemptions. 85 Geo. L.J. 751, 771-72 (1997). On Thu, Jul 11, 2013 at 2:39 PM, Alan Brownstein <aebrownst...@ucdavis.edu>wrote: > This very thoughtful discussion reminded me of an issue that has often > perplexed me: how do we reconcile religious accommodation statutes, such as > RFRA, with the Court’s repeated admonition that discrimination based on > religion beliefs, ideas, or messages constitutes viewpoint discrimination > prohibited by the free speech clause of the First Amendment.**** > > ** ** > > It is my understanding that in the world of “for profit” enterprises, a > business owner’s freedom of association arguments will not allow him or her > to avoid the requirements of conventional civil rights laws prohibiting > employment discrimination on the basis of various characteristics (e.g. > race, gender etc.). It also seems clear that most civil rights laws do not > provide exemptions for business owners whose secular beliefs or > associational interests conflict with anti-discrimination requirements. If > RFRA or other statutes are interpreted to permit religious employers to > avoid the requirements of these civil rights laws, would this application > of the statute constitute viewpoint discrimination in favor of religious > beliefs, ideas, and messages (and the associations on which they are based) > which would arguably violate the free speech clause?**** > > ** ** > > The application of this argument in Hobby Lobby may be less obvious, but > it might go something like this. One of the reasons that religious > employers object to providing health coverage for medical contraceptives – > the use of which is prohibited by their faith – is that doing so > communicates a message of implicit consent to the use of medical > contraceptives. The provision of such insurance burdens the organization’s > ability to communicate its religious beliefs. How can an organization > credibly insist that it is sinful to use medical contraceptives at the same > time that it provides insurance to its employees that covers their use? If > RFRA exempts religious employers from this obligation, but secular > employers must comply with regulations requiring them to provide insurance > for medical uses they find morally offensive for secular reasons, does that > constitute viewpoint discrimination in favor of religious beliefs, ideas, > and messages. The secular employer’s message is burdened by the > requirements it must obey, but the religious employer is relieved of that > burden.**** > > ** ** > > I haven’t given a lot of thought to how this free speech conundrum might > be relevant to the contraceptive mandate cases, but these posts reminded me > of the issue. Any thoughts, James?**** > > ** ** > > Alan Brownstein**** > > ** ** > > **** > > >
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