Tom, Nelson, and Micah have very artfully and rigorously framed the relevant questions re: the role of third party harms and Establishment Clause concerns in the contraceptive mandate litigation. Paul's question was addressed to Nelson, but I would like to suggest an answer -- Hosanna-Tabor can and should rest completely on the doctrine that courts may not decide purely ecclesiastical questions. (See also the church property cases, back to Watson v. Jones and elsewhere under the American common law.) Fitness for ministry is such a question. Once that doctrine, which rests primarily on the Establishment Clause, is in play, third party harms (which are a second order consideration, involving questions of degree) no longer matter. Of course there will be third party harms when courts refuse to answer purely ecclesiastical questions -- someone will lose a litigation claim. But those harms can't be used to displace an absolute Establishment Clause prohibition.
On Wed, Nov 27, 2013 at 10:44 AM, Paul Horwitz <phorw...@hotmail.com> wrote: > Nelson, just on the third-party harm point, do you therefore think that > Hosanna-Tabor was wrongly decided? Or do you think that it is something of > a misnomer to treat a ministerial employee as a total "third party?" > > > On Nov 27, 2013, at 9:12 AM, "Nelson Tebbe" <nelson.te...@brooklaw.edu> > wrote: > > > > > > > > Tom: > > > > Thanks so much for engaging with the piece so generously and skillfully. > It’s heartening that the Establishment Clause issues are finally getting an > airing—our only worry is that it may be too late for a proper briefing > before the Supreme Court. But maybe some members of this list can help > rectify that situation. > > > > Here are some responses to some of your points. We have doubts about > whether the Supreme Court has articulated the third-party-burden test for > religious accommodations as a balancing analysis. Maybe it has, but > alternatively, the language in Cutter, Texas Monthly, and Amos could be > read to carve out a categorical limit on legislative accommodations. Either > way, however, burdens on third party nonbeneficiaries that were negligible > would not pose an Establishment Clause problem. We also question whether > all religious accommodations necessarily do impose burdens on third > parties. How does allowing inmate access to religious literature despite > prison mail regulations in Cutter burden secular inmates? It could be seen > as unfair, as the Sixth Circuit held in that case, but not because it > imposes a burden. The same could be said of religious garb in prisons. So a > categorical rule against significant impositions on third parties would not > eliminate all religious accommodations. > > > > Here, in any event, the burdens on third parties could be significant. > Women who otherwise would be entitled to contraception coverage stand to > lose some or all of that coverage, thereby imposing a real cost on them. We > actually read Caldor to support that view—after all, the employer there > could have found workers to cover for Sabbath observers; it just would have > cost a lot. That’s what we are talking about here, too. > > > > Does the loss of a benefit count as a burden, no matter how large the > difference in cost, or is it simply the non-receipt of a benefit? Of > course, that is the baseline question, and such questions can be tricky, as > you note. But we don’t see a devastating baseline problem in this case. > Even if Hobby Lobby wins, women working at corporations owned by secular > people and religiously-affiliated nonprofits like universities and > hospitals will receive the coverage. Obamacare alters reasonable > expectations and legal entitlements, just as many welfare-state programs > and civil rights laws do. (Interestingly, even Hobby Lobby itself was > providing such coverage before this controversy erupted and the company > realized it had been doing so, so there may be historical support for the > baseline as well.) We think the loss of a costly benefit like this one > counts as a burden, and potentially a serious one. > > > > You point out that the provision of Title VII upheld in Amos did impose > significant burdens on third parties, such as the employees who were > discharged on religious grounds in that case. That’s right. But in Caldor, > a case decided only two years earlier with the support of many of the same > Justices who signed on to Amos, the Court held that burdens on > nonbeneficiaries were too great. What explains the difference? We think the > answer has to be that Amos concerned the associational integrity of a > church itself, while Caldor concerned a for-profit corporation. *That’s* > what Brennan meant when he said in Texas Monthly that the Title VII > exemption “prevented potentially serious encroachments on protected > religious freedoms.” While we ourselves might not endorse that carve out > for churches, it reconciles the two outcomes. And it means that the Court > will be concerned when accommodations for profit-seeking corporations owned > by religious people impose serious costs on employees, as they may well > here. At the very least, we should have the conversation. > > > > Stepping back, you say that society will strike the right balance > between free exercise and nonestablishment interests. Probably you mean > that courts will adjudicate RFRA correctly, without the need for > constitutional intervention. Yet until now, the nonestablishment side of > the leger has gone almost completely unnoticed in the litigation. Now that > it has come to light, we hope it will tip the balance (in cases that have > closely divided the circuit courts) toward protecting women. > > > > We’d like to briefly respond to an issue raised by Eugene and Alan as > well. Although we aren’t prepared to take a definitive position at this > point, we are inclined to agree that nothing much should turn on whether > owners have adopted the corporate form. After all, the D.C. Circuit > performed a strong RFRA analysis after rejecting the idea that corporations > as such can claim the protection of that law. And nonprofit employers raise > many of the same concerns (except that here the regulations protect female > employees from loss of benefits). So the difference in legal form probably > should not be decisive alone. But, on a realist approach, it also is not > enough to say that the corporation is closely held. As Alan suggests, the > size and social significance of the operation is also crucial. Hobby Lobby > itself is closely held, and yet it employs 13,000 people in 500 stores. > That should be an important factor, in addition to whether the corporation > is closely identified with its owners. > > > > Nelson and Micah > > _______________________________________________ > > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
