Alan: I'll let Chip speak for himself, but I don't think the relevant distinction is so much between employment cases and all others as it is between cases *in the commercial sector *(especially claims brought by for-profit enterprises) and all others. In *Piggie Park*, for example, the harm was borne by customers, not employees, but the result was the same.
On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein <aebrownst...@ucdavis.edu>wrote: > With regard to Jim's post (and Chip and Bob's piece), I appreciate the > argument that in employment cases RFRA should be interpreted the same way > that Title VII has been interpreted --- essentially denying all RFRA > claims that would impose more than de minimis costs on third parties or > the public. But I have several questions about it. > > > > First, if we accept Chip and Bob's argument that accommodating Hobby Lobby > would impose significant and serious costs on third parties, resolving this > case against Hobby Lobby doesn't require an interpretation of RFRA that is > as limiting as the one that they propose. Aren't there harms that are more > than de minimis, yet not sufficiently costly to justify the substantial > burdening of religious liberty? > > > > Second, exactly why should the scope of RFRA be so drastically constrained > in employment cases? What distinguishes these kinds of cases from other > accommodation cases - many of which will also impose some costs on third > parties, the state, or the general public? > > > > Third, many commentators have argued that the cost of accommodating Hobby > Lobby should be construed to be the cost of the government setting up an > alternative insurance framework for providing contraceptive coverage for > the employees of religiously exempt employers. The literal cost of doing so > may not be very high. There are ways of conditioning the granting of any > accommodation to offset whatever those costs may be to a considerable > extent. Providing insurance coverage would not require administratively > complex, individualized interventions by the government. And, for many of > us, the government providing health care coverage is the most desirable and > efficient way of extending health insurance coverage in our society in the > first place. The use of employers as a conduit for providing coverage > provides few if any advantages in comparison to a government insurance > program. So if we are focusing on the cost of accommodating Hobby Lobby, > why isn't this the cost we should be evaluating. > > > > Typically in other rights contexts, we focus on the cost of mitigation, > not the potential harm of unmitigated consequences. Thus, if an unpopular > speaker wants to speak in a location where his message is likely to poorly > received, the government cannot silence the speaker on the grounds that > allowing him to speak would cause disorder and damage to property or > persons. Instead, the harm would be the cost of hiring sufficient police > and public safety personnel to maintain order at the event. Typically, > except in the most egregious cases, the government does not have a > compelling state interest in avoiding those financial costs of mitigation. > > > > Alan > > > > On a different note, I want to second Marty's recommendation of the > symposium over at SCOTUS Blog. Specifically, I highly recommend folks take > a look at Chip and Bob's piece, which makes an important argument calling > for symmetry between the treatment of employee accommodations under Title > VII and employer accommodations under RFRA (in both cases this avoids > establishment concerns raised by exemptions that impose more than de > minimis burdens on others). Chip and Bob's piece is available here: > http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ > > > - Jim > > > > _______________________________________________ > 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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