P.S. None of this is germane to my principal point, which was simply that it is a mistake to say that "If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*."
One can certainly argue that federal law imposes substantial pressure *not to drop one's employee plan*, and to instead include contraception coverage (I disagree, but I understand the argument). But *that *is the consequence at issue -- *not* being "barred from owning any business with more than fifty employees." On Thu, Feb 20, 2014 at 11:56 AM, Marty Lederman <lederman.ma...@gmail.com>wrote: > Quick responses to these two points: > > 1. When I referred to differences between RLPA and RFRA, I was alluding > to the amendment to RLPA at that time providing that "This Act should be > construed in favor of a broad protection of religious exercise, *to the > maximum extent permitted* *by its terms* and the Constitution." IIRC, > that amendment caused much consternation about how RLPA, much more than > RFRA and the FEC, would lead to civil rights exemptions. > > 2. Many thousands of employers will in fact drop (or decline to offer in > the first instance) an employee health plan--so it's not remotely > unthinkable; it's expected to occur quite frequently (although predictions > vary on the percentages). More to the point, *I *don't have to persuade > you, nor does the government, that it is a "viable" option. The burden is *on > the plaintiffs *to demonstrate that federal law imposes substantial > pressure on them *not* to drop their plans -- and they haven't introduced > or alleged any evidence at all to that effect, let alone alleged facts that > would survive *Iqbal/Trombley*. > > Moreover, even if the plaintiffs had alleged facts to demonstrate that > *some* employees would be upset if the plan were dropped, so what? There > still wouldn't be proof (i) that federal law (as opposed to the > Obama-hatred you invoke) would be the cause of that hatred; (ii) that a > greater number of employees in the case of these employers wouldn't be > *happier* with a combination of subsidized, full plans on the exchange > and increased salaries; or (iii) most importantly, that any resulting > employee resentment would impose *substantial pressure *on the companies > to keep their plans, even if it meant including contraception coverage. > > > On Thu, Feb 20, 2014 at 10:07 AM, Douglas Laycock > <dlayc...@virginia.edu>wrote: > >> Marty raises multiple issues here. >> >> >> >> *First*: The operative language of RLPA was identical to RFRA. They >> inserted restrictions that limited the application of that language to >> cases that affected commerce, arose in programs receiving federal financial >> assistance, or involved individualized assessments of regulated activity. >> They moved a modifying clause from the end of what it modified to the >> beginning of what it modified. But on the section setting out exercise of >> religion, substantial burden, compelling interest, and least restrictive >> means, they changed nothing that could remotely have affected substance. >> >> >> >> *Second*: Employers could just drop health insurance, but I'm not sure >> anyone but Marty is persuaded that that's a viable option. Certainly there >> is no evidence in the record of either case showing that either employer >> could drop health insurance, pay the fines, give the employees a big enough >> raise that they could all bluy individual coverage on the exchanges, and >> everyone breaks even or comes out ahead. >> >> >> >> Nor is there any reason to think that an employer could do this without >> generating massive employee ill will and seriously damaging its competitive >> position in the market place. For starters, all the people who hate Barack >> Obama and anything he has ever touched or endorsed, and many of those who >> oppose the Affordable Care Act on more rational grounds, would be furious >> at being "dumped" into the exchanges. A very large minority of the >> company's employees would be angry, and a very large minority of the >> potential employment pool would view the employer as a much less desirable >> place to work. Many employees of all political views might prefer that >> their employer do the work of evaluating health plans and choosing a good >> one, sparing them the burden. >> >> >> >> And for decades, a job with full benefits has been the marker of >> first-tier employment; jobs without health insurance are distinctly >> inferior. That may eventually change, when political passions have cooled, >> when the exchanges are functioning smoothly, when their continuous >> existence seems assured. But we certainly aren't there yet. An employer >> following Marty's strategy would suffer serious damage in the employment >> market, and suffer that damage for its owners' religious exercise. As in >> *Sherbert >> v. Verner*, that economic damage is a burden on the underlying >> religious exercise. >> >> >> >> *Third* is the testimony supporting RLPA in 98 and 99. I'll put that in >> a separate post. >> >> >> >> Douglas Laycock >> >> Robert E. Scott Distinguished Professor of Law >> >> University of Virginia Law School >> >> 580 Massie Road >> >> Charlottesville, VA 22903 >> >> 434-243-8546 >> >> >> >> *From:* religionlaw-boun...@lists.ucla.edu [mailto: >> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman >> *Sent:* Wednesday, February 19, 2014 10:33 PM >> *To:* Law & Religion issues for Law Academics >> *Subject:* recommended Hobby Lobby posts >> >> >> >> I have some further posts up on Balkinization. More importantly, both >> Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of >> the SCOTUSblog symposium, which I commend to all of you: >> >> Chip/Bob: >> http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ >> >> Doug: >> http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ >> >> I have questions/reactions to a couple of things in Doug's post: >> >> First, Doug argues that many or all members of Congress during the RLPA >> debate assumed that the bill, which at the time was similar (but not >> identical) to RFRA, would at least allow for-profit corporations or their >> directors/owners to bring claims. But as I recall, Doug and others also >> reassured members of Congress, in public testimony, that large for-profit >> companies would always or almost always *lose *under RLPA. Doug, do you >> think this is one of the rare or exceptional cases where the large >> for-profit plaintiffs should win, and, if so, why is this the outlier? >> >> Second, Doug writes that "If these plaintiffs will not pay for what they >> believe to be such an extraordinary wrong, then in the government's view, >> *they >> are barred from owning any business with more than fifty employees*." >> But it is simply not true that the consequence of excluding contraception >> from the plan would be that the plaintiffs are "barred from owning any >> business with more than fifty employees." *Even if the company had >> fewer than 50 employees, its plan would still have to include contraception*. >> If *any* employer, with fewer *or *more than fifty employees, does not >> wish to include all required services in an employee benefit plan, it has >> two choices: either be subject to prohibitive payments (in effect fines) >> or get rid of their employee plan (in which case most of their employees >> would be eligible for a subsidized plan on an exchange). A more accurate >> way of stating the law would be: "If these plaintiffs, or any other >> employers, do not include coverage in their companies' plans for what they >> believe to be such an extraordinary wrong, then *they will have little >> choice but to drop their plans."* >> >> Also, another small thing related to that sentence: The individual >> plaintiffs, at least in *Hobby Lobby*, would not "pay for" contraception >> -- indeed, they are not even shareholders -- and their brief makes it >> clear, I think, that *payment *is not the gravamen of their complaint. >> See >> http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html >> >> >> >> _______________________________________________ >> 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. >> > >
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