And yet, without some form of heightened scrutiny, the free exercise clause becomes a shell-- a hollow clause. I'm not saying RFRA gets the balancing right (I could make that argument, but I'm not), I'm saying that we have to let judges do this balancing in some way. Otherwise the Free Exercise Clause will become as important as the Ninth Amendment is to contemporary jurisprudence. And *Employment Division*'s principles apply to churches, not just the litigants in this set of cases.
There are plenty of 14th Amendment cases (think *Brown *and subsequent busing cases in lower courts) where judges have acted as "super-legislatures." Why? To protect rights! Michael On Wed, Dec 18, 2013 at 3:46 AM, Marci Hamilton <hamilto...@aol.com> wrote: > This exchange, which shows both Marty and Eugene's high qualifications for > public service, underscores how RFRA (and RLUIPA) turn federal courts into > super legislatures and violate the separation of powers -- as Boerne ruled. > No court in my view is institutionally competent to make these assessments > and no judge, who is unaccountable to the electorate, should. > > Marci > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Dec 17, 2013, at 9:10 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > > The heart of Marty’s argument (I focus for now on item 1 below) is, I > think, an empirical claim: Large employers such as Hobby Lobby would be > better off just dropping coverage, paying the $2000/employee/year tax, > “us[ing] some of [the] enormous cost savings” to compensate employees for > the lost coverage, thus keeping the employees happy, and then pocketing the > rest of the “enormous cost savings.” (Indeed, if employees grumble over > the inconvenience or just the change, the employers can split some of the > rest of the enormous cost savings with the employees -- a win-win > proposition for employers and employees.) And, if Marty is right, this > would be true for employers generally, *not* just religious employers. > We should thus expect a large fraction of savvy employers to take advantage > of this option, purely out of respect for Mammon quite regardless of God. > > > > But I wonder whether this is empirically likely to be true, given not just > the nondeductibility of the tax, but also other factors, such as payroll > taxes on the compensation payment to the employees. It’s not surprising > that the Justice Department hasn’t made this argument, since the > Administration has long argued (unless I’m mistaken) that large employers > *won’t* drop employer-based health insurance. And the Congressional > Budget Office, > http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, > likewise took the view that only a tiny percentage of employers would drop > their health insurance, because “the legislation leaves in place > substantial financial advantages for many people to receive insurance > coverage through their employers, and it provides some new incentives for > employers to offer insurance coverage to their employees.” > > > > Now of course that was in 2011, and perhaps the analysis today would be > different. But the CBO’s estimates still give me pause. And if the CBO is > right, and large employers generally would lose financially -- rather than > gain from capturing some of the “enormous cost savings” -- by dropping > health insurance and adequately compensating employees, then I would think > Hobby Lobby and others would be in the same position. The mandate, even > enforced as a tax, thus would be a substantial burden. > > > > Am I mistaken in this? Marty, do you have any pointers to studies that > support your sense of the money flows on this, and contradict what I see as > the CBO’s view? > > > > Eugene > > > > > > Marty writes: > > > > 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.) > > _______________________________________________ > 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. > -- Michael Worley BYU Law School, Class of 2014
_______________________________________________ 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.
