Eugene: 1. I strongly suggest that you read the Gedicks and Van Tassell article, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, for a fully developed answer to your questions.
2. Your post conflates two different objections to religion-specific, permissive accommodations -- the religion-favoring objection (Texas Monthly), which asks whether there is adequate justification to single out religion for an accommodation (or, as the Court says in Cutter, is religion exceptionally burdened by the rule); and the third party costs objection (Caldor; statutory construction in Hardison). 3. Re: conscription -- the best answer to the 3rd party cost objection is that the 3rd party burdens are diffuse (or, as Gedicks and Van Tassell put it, immaterial), because they are spread among so many potential draftees. The third party costs of a contraceptive mandate exception are anything but diffuse; we know exactly who bears them. This is why Caldor/Hardison are the more important precedents. 4. Re: solving both problems by equalizing up, and offering exemptions to moral/philiosophical objections. This "solves" the third party cost problem by making the cost-bearers into subsidizers of many different kinds of objectors, not just religious ones. (Cf. Walz -- others pay more property taxes, but costs are diffuse and subsidy goes to many different causes.) But so extending RFRA would a) do violence to its history and purpose, as Jim Oleske has pointed out; and b) open the door to libertarian employers, operating for profit business, to object to every regulation of the employment relation, as well as every other business regulation, as substantially burdening the employer/owner's exercise of libertarianist economic freedom. Does that seem like a jurisprudentially sound move? Chip On Mon, Dec 2, 2013 at 2:14 AM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I’ve been thinking some more about the argument that the > Establishment Clause forbids any RFRA-based religious exemptions from the > employer mandate, on the grounds that such exemptions would impose an > unacceptable burden on employees who would thus have to (say) pay for > contraceptives themselves. It seems to me that the conscientious objector > exemption offers an interesting (though necessarily imperfect) analogy. > > > > The draft exemption for conscientious objectors imposes a > burden on third parties -- for every person who is exempted from the draft > as a conscientious objector, there will be one other person who would > therefore have to go to kill and to risk death. Of course, that exemption > might have been upheld only because it has been interpreted to apply to > philosophical conscientious objectors as well as to religious objectors. > But I take it that RFRA could likewise be interpreted to apply to > philosophical conscientious beliefs. It would involve less twisting of the > statute, I think, than what was done for the draft exemption. And indeed > the other main body of federal religious exemption law -- the Title VII > religious accommodation provision -- has been interpreted by the EEOC and > many courts as applying to philosophical conscientious beliefs. > > > > Does it follow that, if the conscientious objector > exemption is consistent with the Establishment Clause, despite the burdens > it imposes on nonbelieving third parties, the RFRA-based employer mandate > exemption being urged in *Hobby Lobby *would be consistent with the > Establishment Clause, too? Or is there some reason why the former is > constitutional and the latter is not? > > > > Note that this is *not* a response to the argument that > there’s some other compelling government interest supporting denial of a > RFRA-based exemption in *Hobby Lobby*. I mean this to focus solely on > the argument that any such RFRA-based exemption would violate the > Establishment Clause. > > > > Eugene > > _______________________________________________ > 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.
