Very good questions, Alan. Three replies (in reverse order of your questions):
1. Other rights contexts (like free speech) where third party costs are present -- Religion is different. The Establishment Clause is a limit on the government's power to authorize one party to act on religious beliefs in ways that harm others. Government vigorously protects labor speech in the workplace, even though it may lead workers to unionize and cost employers money (way more than de minimis in some cases). But Thornton v. Caldor explicitly, and the Title VII line of cases about religious accommodation (in these, implicitly) impose limits on the power of A to shift costs to B to protect A's religious commitments. 2. Less restrictive means (and the power of government to provide contraceptive services directly to employees of firms that refuse to insure for coverage of those services). If Hobby Lobby wins, its female employees, and the female dependents of all employees, will lose the controverted coverage. For some of them, that will mean they cannot afford the safest and most effective contraception (perhaps a hormonal IUD, close to $1000 initial outlay). That the government can/might/should fill the gap for these employees cannot be a sufficient reason to accept Hobby Lobby's RFRA claim, because the government may very well NOT fill the gap. Imagine the politics of the gap-filling legislation -- a public option, government financed, for contraceptives that some people believe are abortifacients. Likely to be enacted sometime soon? And if government does not fill that gap, then these women and others similarly situated take the full brunt of the loss. They will not have the coverage that, within a few years, almost every woman in the U.S. will have. That consequence presents a serious Establishment Clause problem, and RFRA should be construed to avoid it. 3. Why de minimis? Why not allow even more than de minimis cost-shifting when the burden on the objecting company or its owners is substantial? As we know from Caldor, Cutter, Texas Monthly, and Amos, the lines here are not bright. How much cost-shifting is more than the Establishment Clause will tolerate is a matter of degree. The beauty of "de minimis" as the line is 1) it comes from a relevant body of law, related to employer-employee relations, 2) it therefore arrives with legal momentum and quantitative precedent; and 3) it offers symmetry between employees and employers re: how much cost each can impose on the other. (Alan, you might prefer the Title VII standard for religious accommodation to be more generous to employees than "de minimis." But that's not the law.) Chip 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
