I have enjoyed the discussion of the third party burden issue. Thanks to all, especially Nelson and Micah for kicking it off.
I would add a couple of thoughts to Eugene’s argument against applying the Establishment Clause to limit RFRA in these cases. http://www.volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/ 1. There are a lot of religious/conscientious exemptions besides the draft that specifically exempt objectors from an obligation to participate in something they believe to be unjustified killing, or to implicate difficult moral questions about life and death. The regulations are both federal and state, and cover abortion, sterilization, pharmaceutical sales, capital punishment, physician-assisted suicide. See Chapman, Disintangling Conscience and Religion, 2013 U. Ill. L. Rev. 1457, 1459. Now, we don’t agree about whether all of those situations constitute unjustified killing of a human being, or even whether they constitute killing of a human being in the first place. But that is exactly the point: we have a morally pluralistic society, and technology is rapidly generating novel and complicated life and death questions. As a matter not only of political expedience, but as a prudent form of political morality, it is wise to allow minority views on life and death to exist. This is an argument about epistemic humility and the social costs of (1) getting life/death issues wrong, and (2) forcing others to follow that mistake. I know of no instance in which the above exemptions have been challenged on establishment clause grounds, though they surely create burdens on third parties, to a greater or lesser degree. 2. A third party burden “doctrine” would be especially vague, aggregating even more power to the Supreme Court over politically touchy and constitutionally vague issues. Most, if not all exemptions, create burdens on third parties, either directly, as in Hobby Lobby, or indirectly, when taxpayers must pay for the government’s increased burden. Of course the court has said taxpaying doesn’t count, and sensibly so. But in Hobby Lobby alone, the regulatory exemptions under Obamacare create a variety of burdens on third parties. The church exemption obviously does, and the “Notre Dame” exemption does too — in that case the burden gets shifted to third party insurance companies. All of this illustrates that the third party burden analysis, whether incorporated into the government’s interest or a separate analysis, entails difficult line-drawing and weighing. What ought to matter most when determining the burden on third parties? Number of parties affected? Absolute burden? Relative burden based on ability to pay? Dignitary burdens versus financial burdens? Does it really matter whether the third parties are identifiable? (If anything this makes it easier for the government to relieve them a burden created by an exemption.) Moreover, the Court is asked to assess this burden without the affected parties before it, when it could develop a factual record about the precise parameters of the burden. Wouldn’t the burden be worse in Hobby Lobby if the female employees could show that they actually use the contraceptives at issue, that they have had them covered by insurance in the past, that the out-of-pocket expenses will come out of the family’s budget for food, clothing, and housing, and that they are likely to not purchase the contraceptives unless it is covered by insurance? Wouldn’t it be worse if it turned out there are scores — hundreds, maybe thousands — of large for-profit organizations that would seek the exemption? It is difficult to know those facts, which would be relevant to assessing the burden, without the affected parties before the court. (I also think the assessment of the plaintiff’s “substantial burden” would likewise be more robust and persuasive if it was based on intensive discovery rather than the complaint.) 3. As a matter of text and history, it has always struck me as bizarre that the establishment clause — meant to prohibit majoritarian rule on matters of religion — might prevent protecting religious minorities with exemptions from majoritarian, generally applicable laws. This is not to say that Hobby Lobby and Conestoga Woods have good RFRA claims, just to suggest that an Establishment Clause third party doctrine, applied here, would be textually and historically strange, have far-reaching effects on well-established religious/moral exemptions in life/death cases, and would call for an especially vague legal analysis by the Court. All of which would give the Court even more nearly arbitrary power over religious liberty and equality concerns than it already wields. Nathan
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