I do indeed think so. The government doesn’t have to extend a
government-mandated benefit to everyone; Title VII protections, for instance,
aren’t extended to employees of small businesses, and are otherwise limited in
various ways. Indeed, a law can’t discriminate based on a beneficiary’s
religion in extending such a benefit (except perhaps when the benefit is itself
a religious accommodation). But I don’t think that there should be an
Establishment Clause problem with a law saying that, for instance, those
tenants who want to rent from religious objector landlords don’t get the
protections of marital status discrimination law, those employees who work for
religious vegetarian landlords don’t get the protections of the meaty lunch
program, or those employees who work for employers who object to paying for
contraceptives or abortifacents don’t get the protections of the relevant
health care insurance program.
As to Cutter, the only way I can see of reconciling it with
Amos is by not reading Thornton too broadly. The accommodation in Amos did
not, after all, at all “take adequate account of the burdens a requested
accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as
included denial of a government-mandated benefit. The employee in Amos was
seriously burdened indeed, by loss of his job, and not just of some benefit
under the health insurance coverage. That the employer was a nonprofit, after
all, did not eliminate or even diminish the burden on the employees; employees
of nonprofits are just as burdened by loss of a job as employees of
for-profits. And the law in Amos did not call on courts to “take adequate
account of the burden.”
Eugene
Alan Brownstein writes:
Eugene, are you arguing that an exemption that effectively denies a class of
individuals a government-mandated benefit that there are otherwise entitled to
receive can never violate the Establishment Clause under Amos, Thornton, and
Cutter? I think that requires courts to engage in an unhelpful inquiry trying
to distinguish between benefits and burdens (does an exemption from laws
requiring that employers provide employees a safe working environment impose a
burden on workers or deny them a government-mandated benefit).
I think Cutter clearly suggests that exemptions would be unacceptable, not
because they give the force of law to a believer’s action, but because of “the
burdens a requested accommodation may impose on non-beneficiaries” and because
an accommodation would “impose unjustified burdens on other institutionalized
persons, or jeopardize the effective functioning of an institution.”
I agree that the mere fact that some burden is imposed or benefit denied does
not demonstrate that an exemption violates the Establishment Clause. But
accommodations that either impose direct burdens or interfere with mandated
benefits can violate the Establishment Clause if they go too far.
Alan Brownstein
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 26, 2013 2:52 PM
To: Law & Religion issues for Law Academics
Subject: RE: Contraception Mandate
I don’t see that at all. Say the government requires employers
to buy lunch for their employees, and a religiously vegetarian employer orders
only vegetarian food. I don’t think that somehow constitutes the employer
discriminating based on religion against people who don’t share his beliefs.
Now say that the government requires employers to buy lunch for
their employees, and include meat (since that’s what the government sees as
part of a healthy, balanced lunch), but has an exemption for religious
employers. I don’t think that would somehow violate the Establishment Clause,
on a Thornton theory. Unlike in Thornton, the exemption wouldn’t impose any
legal coercion on an objecting nonbeliever, by “giv[ing] the force of law” to a
believer’s action (Amos’s explanation of Thornton). It would simply -- like in
Amos or in Cutter, which are indeed relevant for purposes of understanding the
boundaries of Thornton -- exempt the employer from a government-imposed
requirement, and indeed a requirement that (more so than in Amos) involves a
government-imposed burden on the employer’s religious practice. That the
employees no longer get a government-mandated benefit does not make the
exemption unconstitutional.
So I don’t think there’s an Establishment Clause problem with
such exemptions, and likewise there wouldn’t be with any such exemption
recognized under RFRA. To be sure, this doesn’t tell us whether the exemption
should still be denied, on the theory that the denial is necessary to serve a
compelling government interest. But that’s a separate question from whether
the exemption would be outright unconstitutional.
Eugene
Marci wrote:
The employer is insisting that employees accept benefit plans tailored to his
religious beliefs, even though they accepted employment, which under federal law
prohibits the employer from discriminating on the basis of religion (or gender).
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