Thanks, Eugene, for the close read and detailed reactions. 1. On your first point, even if the 4980H(a) tax were the equivalent of a $3000 assessment (because it's paid with after-tax dollars), the average cost for providing health insurance to employees is, as I understand it, closer to $10,000, so the employer would save about $7000 per employee. (In any event, there are no allegations in these cases that HL or CW is significantly differently situated than a typical employer, e.g., that they have a workforce comprised of almost all single employees with no family coverage.)
In order to remain competitive for recruiting or retaining most of their employees, the plaintiffs wouldn't have to kick in any extra money in salary, because the employees would have their exchange-purchased plans subsidized by the federal government (both in terms of the cost-savings realized by virtue of the exchanges themselves as well as the government's premium tax credits and cost-sharing reductions. To be sure, some of their more well-compensated employees *might* have paid less in premiums for the HL plan than they would to purchase a plan on the exchange (*maybe* -- again, there's no allegation or evidence of that here). But to make up *that* hypothetical shortfall, and attract those employees, HL need only use some of its enormous cost savings to sweeten their salaries. (This is presumably what the many large employers who do not provide plans will do.) For all these reasons, it is difficult to imagine HL or CW --or, more to the point, the average large employer -- being financially *worse off* if it pays the assessment. (And again, there's no allegation of facts that would alter that conclusion here, in any event.) 2. As for my "secondary" argument -- the one derives from *Lee *and that does not depend on evaluation of financial burdens -- it has nothing in common with a "fine" for gas stations not staying open seven days a week. Instead, the logic is something like this: i. Say Congress had simply decided that *all *employers, or all large employers, anyway, had to pay a tax of $2000 per employee to subsidize a new government benefit, namely, comprehensive health insurance to be purchased on a government-run exchange, with government subsidies offered to those who can't afford to buy the plans on the exchange themselves. This tax law would allow employers to provide their own insurance plans to their employees, too -- just as employers can offer their employees pension benefits in addition to social security -- but that would not affect their obligation to pay the $2000. I think we'd all agree that this would be constitutional, per *Lee* (and thus satisfy RFRA), even as applied to someone whose religion prohibited them from paying the $2000. And the case would be even clearer as to an employer -- such as those here -- who do not have such a religious obligation. So, if *all* Congress had done was to assess the tax on all large employers, there'd be no viable RFRA claim. ii. OK, but now Congress says the following: You know what? If you, Employer X, wish to be even *more *generous, and you provide the new social benefit to your employees yourself -- all of it, not 90% of it -- then we will accept that as an *alternative* way of you shouldering your fair share of this new social benefit. You can do one or the other -- *either* pay us the $2000 per employee, which we will then use to help subsidize the new government-provided benefit (an option that, standing alone, does not require a RFRA exemption), *or *provide the benefit to your employees, thereby saving us that expense. Is it really possible that the addition of this second alternative -- *increasing *the employer's options -- turns a baseless RFRA claim into a successful one? I'm not sure I can think of a plausible analogy with your gasoline example. It would have to be something like this: Congress decides that everyone should have access to affordable gasoline, whenever they need it. In the service of that new benefit, Congress taxes all large employers a "gas tax." But then Congress adds this codicil: If you provide your employees vouchers that they can use for gas anytime they need it -- seven days a week, not six -- or if you actually *fill up their tanks* seven days a week, then you are exempt from having to pay the tax. RFRA claim? 3. Finally, you write that "part of [my] argument, I take it, is that certain taxes aimed at compensating for the costs imposed by a person’s religious activity are permissible." I don't believe that anything in my post suggests such an assertion. In any event, it is not what I intended to argue. The tax is not designed to "compensate" for costs imposed by anyone's religious activity -- indeed, the tax is assessed without any thought or reference to religious activity at all. The tax, like Social Security, is simply assessed in order to help subsidize a new social benefit available to all. On Tue, Dec 17, 2013 at 3:13 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > 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<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 > > 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. > > _______________________________________________ > 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.
