Let me ask a different question about the contraceptive
mandate, and one that I should stress is not relevant under RFRA; it's more a
question of how exemptions should be crafted.
I often here variants of the following argument for Hobby Lobby
and similar companies: People shouldn't have to abandon their ability to
follow their religions as a price of going into business. And I sympathize
with that argument at a general level. I also think that, if an employer
sincerely believes that it's wrong to even buy policies that coverage, say,
abortifacents, then requiring the employer to do so imposes a substantial
burden. And this is so even if the employer doesn't believe that it's wrong to
pay taxes that pay for abortions (as taxes do in some states, and I suspect in
some measure at the federal level, too). As Thomas v. Review Bd. made clear,
religious observers necessarily draw lines about when participation in
something becomes sinful complicity, and courts can't second-guess such sincere
lines.
At the same time, the fact is that the law does require
Americans to pay taxes. People who really oppose abortion already have to
somehow reconcile themselves to living in a country in which taxes sometimes go
to pay for abortions. They have to somehow reconcile themselves to the
possibility that the salaries they pay their employees sometimes go to pay for
abortions.
Indeed, I suspect that the lines that many opponents of abortion do draw are
influenced by the places that they are told (by the law or by society) they
cannot draw the line. There aren't a lot of people who draw the line in a
place which bans them from paying their taxes when those taxes can be used to
help fund abortion; but maybe that's precisely because they know that, if they
draw the line there, they'll go to jail.
I wonder whether, if employers were told that buying insurance policies for
employees will be treated by the law the same as paying taxes - a
government-imposed requirement to pay money - then nearly all employers would
come around to drawing the line at a different place (e.g., at a place where
they think it sinful to, for instance, perform abortions or allow abortions on
their physical property, but not to buy insurance policies that cover
abortifacents). Should that matter to us? Should we think that, just as not
that much has been lost in forcing everyone (not just businesspeople but
everyone) to pay taxes that go to things that they may see are sinful, not that
much would be lost in imposing similar obligations to pay employee benefits
that cover things that the employers may see are sinful? Or should we think
that a great deal has indeed been lost - though necessarily so - in denying
exemptions to religious tax objectors, and that still more will be lots (and
without as much pressing necessity) in denying exemptions to religious
insurance payment objectors?
Eugene
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