The less restrictive means would be to have the government offer such a plan, which employees could buy from the government (or from some other entity), without the employer being involved. After all, until recently, employers weren’t required to provide insurance at all, though there were substantial market pressures and tax incentives for them to do so. The alternative would simply retain that pre-ACA system for the tiny corner of health care spending involved in blood transfusions for employees of companies that oppose such transfusions.
Now I certainly wouldn’t say that such an alternative is constitutionally mandated, and I wouldn’t relish the prospect of judges deciding, as a constitutional matter and with no possibility of legislative override, whether such an alternative would be too expensive or burdensome on the government. (That’s one reason I support Employment Division v. Smith as a view of the Free Exercise Clause.) But RFRA is a Congressional judgment that judges should generally engage in least-restrictive-means-of-serving-a-compelling-interest analysis, pursuant to Congressional authorization and with the possibility of a Congressional override. So under RFRA, courts would have to consider whether this alternative system of funding blood transfusions is indeed a less restrictive means of serving a compelling government interest. Eugene From: religionlaw-bounces+volokh=law.ucla....@lists.ucla.edu [mailto:religionlaw-bounces+volokh=law.ucla....@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, November 26, 2013 2:29 PM To: religionlaw@lists.ucla.edu Subject: Re: Contraception Mandate I'll wait for others to weigh in on the first, but with respect to the second, I thought the argument was that the employer can't be part of a system that involves acts by others that violate his religious beliefs. How does the cheap supplementary plan for transfusions solve the Jehovahs Witness's being part of a system that involves acts that violate his religious beliefs? Is Hobby Lobby willing to provide a supplementary, inexpensive plan for contraception? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com<http://sol-reform.com/> [http://sol-reform.com/fb.png]<https://www.facebook.com/professormarciahamilton?fref=ts> [http://www.sol-reform.com/tw.png] <https://twitter.com/marci_hamilton> -----Original Message----- From: Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto:religionlaw@lists.ucla.edu>> Sent: Tue, Nov 26, 2013 5:21 pm Subject: RE: Contraception Mandate I’m not Brad, but I thought I’d put my two cents’ worth in: Brad- Is it your view that for-profit companies over 50 employees (those affected here), who are subject to Title VII, and may not discriminate on the basis of religion or gender, can tailor their salary and benefit plans according to religious beliefs and gender? I should think that, whether the company is for-profit or non-profit (and corporation or sole proprietorship), the ban on discrimination might well impose a substantial burden on the employer -- if the employer feels a religious obligation to discriminate -- but would be upheld under strict scrutiny, no? But I take it that the case for the contraception mandate being narrowly tailored to a compelling government interest is different from the case for Title VII being thus narrowly tailored. Separately, what is your view on whether a Jehovah's Witness for-profit company can exclude blood transfusions as part of its benefits plan? There too the question -- whether as to a for-profit or a non-profit, and corporation or sole proprietorship -- would be whether the law is narrowly tailored to a compelling government interest, or whether the government has some other less restrictive means of serving the interest (e.g., offering what would likely be a very cheap supplementary insurance plan covering only blood transfusions, for anyone who has such an exclusion and who just needs the transfusions). Eugene _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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.
_______________________________________________ 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.