Interesting piece. I think there have been and should be Establishment Clause constraints on the burdens religious accommodations can impose on third parties, but determining how and where this line should be drawn is no easy task.
I think there are three other distinctions or questions one might raise about extending RFRA exemptions to for-profit corporations. First, religious liberty and freedom of conscience is primarily a dignitary right, not an instrumental right. Citizens United involved the instrumental goals of the free speech clause. Does the Constitution provide the same dignitary protection to corporations that it provides to human persons? See, e.g. Justice Rehnquist's dissent in PG & E v. PUC. Second, I think the state would need to worry more about sham claims for religious exemptions from for-profit companies than religious non-profits. The religious identity of the great majority of religious non-profit corporations is not hard to determine. Religion is the core of their activity. The core activity of the great majority of for-profit corporation is making a profit. It will be harder to guarantee the genuineness of claims for religious exemptions in the for-profit sector. This is particularly true when the exemption will reduce the corporation's costs. While this concern might be more appropriately considered in the application of strict scrutiny review, one might argue that the case for not granting the exemption is sufficiently strong that we could adopt a prophylactic rule preventing for-profit companies from asserting the statutory right in the first place. Third, we often require the recipients of exemptions to channel the cost of the obligation they need not obey toward some other public good or service that is consistent with their faith. See, e.g. conscientious objectors being required to perform alternative service. Would the case for an exemption be strengthened if the recipient of the exemption was required to direct whatever it saved from being relieved of the obligation to provide contraceptive coverage toward some other government identified public good? I am inclined to agree with Tom that there are important arguments on both sides of this case. Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Tuesday, November 26, 2013 12:36 PM To: religionlaw@lists.ucla.edu Subject: Contraception Mandate Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting on today's cert. grant. We emphasize three differences between these cases and Citizens United, including the significant Establishment Clause ramifications of ruling in favor of the corporations here. We link to important work by Fred Gedicks developing the nonestablishment argument. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html Nelson Tebbe _______________________________________________ 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. _______________________________________________ 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.
