Just a couple of points on the relevance of Lee:
First, I agree with James Oleske that fitting Lee
into the analysis is important. I was more
concerned in my short comment (
http://ssrn.com/abstract=2296635 ) to make the
point that questions such as the for-profit
status of the employer should be addressed as
part of the compelling interest analysis rather than at the threshold.
Second, as to that compelling interest
analysis: The quoted line from Lee needs to be
understood, it seems to me, in the light of the
Court's more general point about the government's
compelling interest in collecting social security
(and other) taxes. As I point out in my comment,
governmental interest in the religion-based
exemptions context should usually be measured "at
the margin" and not in toto. Sometimes, though,
the government has an interest, even at the
margin, in applying a given rule in all
cases. The Court in Lee held that the government
had a compelling interest, not only in collecting
taxes from Lee as such, but in maintaining a
"comprehensive" system with "mandatory and
continuous participation." This makes some
sense, not only for actuarial reasons, but
because (I extrapolate here) rendering the tax in
some sense "voluntary" would make it more
difficult to enforce it against everybody
else. (Folks who are being told to pay money to
the government justifiably resent it when other
folks get a pass.) Moreover, as the Court
pointed out, lots of religious groups object to
lots of different expenditures to which tax
revenue is applied, so that allowing an exemption
would open a real floodgate. Given that systemic
interest, the Court concluded that trying to
carve out a constitutional exception would be
infeasible. At that point, the Court had one
loose end to tie up: that Congress had in fact
legislated an exception for self-employed
religious objectors. It was in the context of
distinguishing that statutory exception from the
claimed constitutional exemption that the Court
wrote that: "Self-employed persons in a
religious community having its own "welfare"
system are distinguishable from the generality of
wage earners employed by others. Congress and
the courts have been sensitive to the needs
flowing from the Free Exercise Clause, but every
person cannot be shielded from all the burdens
incident to exercising every aspect of the right
to practice religious beliefs. When followers of
a particular sect enter into commercial activity
as a matter of choice, the limits they accept on
their own conduct as a matter of conscience and
faith are not to be superimposed on the statutory
schemes which are binding on others in that activity."
The contraception mandate, it seems to me, is
quite different. Most importantly, the religious
objectors are not asking to be let off the hook
financially. As the government itself emphasizes
(to make a different point), contraceptive
coverage does not make health insurance more
expensive; indeed, it probably reduces net health
costs. Thus, neither the financial integrity of
the system nor the possible resentment of other
employers is at risk. Second, and related, with
the exception of folks who might object to any
health insurance or medical treatment for that
matter (and who are easily distinguishable),
there aren't a whole bunch of religious objectors
to other specific pieces of coverage waiting in
the wings. Therefore, there's no realistic
floodgate problem. So while I'm happy to admit
that there might be some systemic interest here,
it isn't even in the ballpark of the systemic
interest in collecting taxes. So.... in the
light of that very different context, we're back
to asking whether there's a reason to distinguish
for-profit from non-profit employers. There
might be, for reasons I discuss in the
comment. But it's a hard question, and not one that I think Lee resolves.
Regards,
Perry
On Aug 1, 2013, at 2:35 PM, James Oleske <joleske
at lclark.edu<mailto:joleske at lclark.edu>> wrote:
<snip>
Like Professor Laycock's piece, Professor Dane's
piece finds fault with overheated claims on both
sides of the debate, but I'm most interested in
the doctrinal analysis Professor Dane offers in
place of the heat. In particular, on the issue
of exemptions for for-profit institutions,
Professor Dane's analysis begins with a line
that, while not explicitly discussing the case,
seems to track the approach of the Court in United States v. Lee:
"I do think that the for-profit status of some
religious objectors might be relevant, but at
the back end in the analysis of compelling
interest rather than the front end determination of substantial burden."
Professor Dane then notes that arguments can be
made for and against making distinctions between
small and large businesses in determining the
government's interest in denying exemptions (I
would only add that the denial of an exemption
to a very small employer in Lee may be relevant
to further exploration of these arguments).
Professor Dane concludes his analysis by stating
that a "vital proposition in the conception of
religious liberty" is that "believers have at
least a presumptive right to live out the
commitments of their faith across the whole
range of human activity, including the world of business and commerce."
It is this last point that I think would benefit
most from being expanded to account for the
doctrinal significance of Lee, where the Court
identified a competing presumption that comes
into play in for-profit cases due to impact on third parties:
"When followers of a particular sect enter into
commercial activity as a matter of choice, the
limits they accept on their own conduct as a
matter of conscience and faith are not to be
superimposed on the statutory schemes which are
binding on others in that activity. Granting an
exemption from social security taxes to an
employer operates to impose the employer's religious faith on the employ
<snip>
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
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.
