I appreciate Alan's argument, though I'm not sure the analogy
quite works, given that there's likely no RFRA entitlement to a draft exemption
in any event, see Gillette.
1. But I was wondering if I could probe a little further on
Marty's factual argument. As I understand it, the main claim is that there's
no real burden on employers because they could comply with the law, not violate
their religious beliefs, and not even lose employees, by simply not providing
any insurance, paying the $2000/employee/year tax, and paying the cost of
insurance minus the tax as a higher salary to their employees. If this is
right, then I agree that, under Tony & Susan Alamo Foundation, the employers
won't have been substantially burdened, assuming (as I'm glad to do for
purposes of the discussion) the employers don't feel an actual religious
obligation to provide insurance, rather than just providing money that
employees could use to buy insurance. (Marty, am I understanding that part of
the claim correctly?)
I'm curious, though, whether this is so as a factual matter.
To use Marty's number, say that an employer has to pay $4000/year per single
employee in health insurance. If it pays a (non-tax-exempt) $2000 tax, that's
the rough equivalent, at a 35% income tax rate, of a $3000 tax. This means
that the employer has a surplus of $1000, which it can pay to employees as
extra salary. But Hobby Lobby's competitors would be giving employees health
insurance, so to maintain its competitiveness for employees, Hobby Lobby would
have to pay them the cost of the health insurance. Am I mistaken in thinking
that most insurance for most employees would cost much more than $1000/year?
If so, wouldn't this mean that, despite all this financial work, the net effect
will be that, to comply with law, comply with its religious beliefs, and still
be competitive for employees, Hobby Lobby would have to pay thousands of
dollars per year extra? That strikes me as a pretty substantial burden,
notwithstanding that it's imposed through the tax system.
2. Marty, though, also has an alternative argument. "Even
putting aside the particular question of a 'substantial burden' on plaintiffs'
religious exercise, the fact that there is no federal 'mandate,' or legal duty,
for the plaintiffs to offer insurance plans of a particular sort undermines the
plaintiffs' RFRA claims in a more fundamental respect: It explains why those
claims run headlong into the Court's unanimous 1982 opinion in United States v.
Lee, concerning a religious liberty challenge to a tax for another universal
federal entitlement program, Social Security."
Is that right? I agree that Lee bars claims of religious
exemptions from tax obligations. But does it also bar claims of religious
exemptions when the government imposes a tax on an action (or inaction), where
the action (or inaction) is seen as religiously compelled?
Say, for instance, that the government enacts a law requiring
all service stations to be open seven days a week, and fining those who don't
comply $2000/year. A station is owned and run by an Orthodox Jew or
Seventh-Day Adventist, who feels a religious obligation to close the station on
the Sabbath. I assume this would be seen as a substantial burden on religious
practice, and one that quite likely can't pass strict scrutiny. Now the
government says "we will impose a $2000 tax on all those who don't open their
service stations seven days a week." Is it really the case that Lee would
preclude a challenge?
What if the government provides, "any person who is dismissed
employment for failing to comply with a work rule will have to pay a tax 20% of
the unemployment compensation the person would otherwise have received" --
would a state RFRA challenge be precluded given Lee? Cf. Hobbie, n.8 (noting
that Florida didn't completely deny unemployment compensation to those
"discharge[d] due to misconduct connected with work," but only denied it in
part).
3. Finally, part of the argument, I take it, is that certain
taxes aimed at compensating for the costs imposed by a person's religious
activity are permissible. In principle, I think that this general idea has
much to recommend it. But I wonder just how it would fit within the
substantial burden / strict scrutiny framework, and I also wonder how one can
figure out what is a permissible tax and what is an impermissible one.
In any case, I'd love to hear more about this from Marty or
from others.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein
Sent: Monday, December 16, 2013 2:15 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby posts
I also thought that Marty's argument that there is actually no employer mandate
for RFRA purposes was extremely thoughtful and interesting.
I thought about this analogy while considering his analysis. Suppose the
federal government decides to return to a system of conscription that includes
non-military, national service. All draftees are told up front that they can
either serve in the military or in a wide variety of alternative service jobs.
There is no specific conscientious objector exemption provided by the
conscription statute. Would a religious pacifist have a claim under RFRA? As
long as there were alternative service jobs available that did not violate the
draftees religious beliefs, and the alternative jobs were not more demanding
and dangerous than military service, I take it Marty's analysis would suggest
that no viable RFRA claim would exist. A draftee might argue that serving the
government in any capacity under a national service plan would violate his
religious beliefs, but I think that position was never accepted in
conscientious objector cases and presumably it would not be accepted for this
new system of national service.
Of course, as Marty recognizes, there may be questions as to the costs
employers actually incur if they choose to pay the tax alternative (e.g. the
employer being placed at a competitive disadvantage) just as in my analogy
there may be questions about the burdens imposed on individuals choosing
non-military service. But those questions do not undercut the foundation of
his argument.
Alan Brownstein
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, December 16, 2013 12:03 PM
To: Law & Religion issues for Law Academics
Subject: RE: Hobby Lobby posts
I much appreciate Marty's kind words about my posts, and I'm
very interested in his posts. The argument that there's actually no employer
mandate for RFRA purposes (the Part III post) strikes me as especially
interesting, though I'm somewhat skeptical about it. Marty, could you post an
excerpt of that post on this list? I'd love to hear what others have to say
about it. Thanks,
Eugene
From:
religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, December 16, 2013 10:53 AM
To: Law & Religion issues for Law Academics
Subject: Hobby Lobby posts
Since no one else has mentioned it, I will:
Eugene recently published a remarkable series of posts on the case -- so much
there that virtually everyone on this listserv is sure to agree with some
arguments and disagree with others. It's an amazing public service, whatever
one thinks of the merits. He and I turned the posts into a single, 53-page
(single-spaced!) Word document for your convenience:
www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx<http://www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx>
I've just started my own series of posts on the case on Balkinization -- links
to the first three below. The second is about the thorny
contraception/"abortifacient" issue (nominally) in play in the two cases the
Court granted. In the third post, I endeavor to explain that the case is
fundamentally different from what all the courts and plaintiffs (and press)
have assumed, because there is in fact no "employer mandate" to provide
contraception coverage.
http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html
http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html
http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html
Thanks to those of you who have already offered very useful provocations and
arguments on-list; I'd welcome further reactions, of course.
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