Marty, I ran out of space on the other chain. Thanks for carefully responding to my questions, and I'm sorry for any confusion.
I think nonreligious statutory exemptions could be relevant to RFRA and First Amendment analyses in at least three different ways. First, they could suggest that the government's interest isn't really compelling. I don't take issue with your analysis of that. An exemption could also suggest an intent to discriminate on the basis of religion, ala Lukumi. I wouldn't find that argument persuasive here. The ACA small business exemption, in particular, could also suggest that the government has other ways to achieve its compelling interest -- paying for the coverage itself. I'm not sure I find it persuasive in this case -- I just meant to suggest that pointing out the exemption was not irrelevant to the RFRA analysis. What is somewhat ironic here, and perhaps it is a necessary feature of the way these different analyses interact, is that by addressing the first issue, that is, by making sure everyone is eligible for coverage and therefore showing that coverage is a compelling government interest, the government has also demonstrated a less restrictive way of meeting that compelling government interest. In terms of nomenclature, I think of these as three different questions of underinclusivity. But of course I understand how folks could disagree with the lingo. Nathan
_______________________________________________ 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.
