Mark Scarberry writes "We are on a slippery slope when we refer to someone as seeking to have "the government[] ... authorize [it] to act on religious beliefs in ways that harm others," when what is at stake is whether the government can force that person to do something for others in violation of religious conscience. This comes very close to saying that the government authorizes whatever it does not prohibit."
Mark's concern is very apt in a world of lightly regulated relationships between people who are not in a legally constructed relationship. The government does not "authorize" me to be rude to my neighbors when it fails to prohibit the rudeness. But the employment relation is a highly regulated contractual one, with all sorts of legal duties imposed on parties, especially on employers. So if government prescribes terms for that relationship -- e.g., provide a safe workplace -- then an exemption from those terms is "authorization" to behave differently and alter the contract to the detriment of the other party. The minimum coverages -- contraceptive and otherwise -- are now effectively part of the employment contract in firms with 50+ employees, and the only ways out are 1) keep your pre-ACA plan, or 2) pay the assessable payment for dropping or not obtaining coverage. (If you do the latter, your employees can buy coverage on the exchanges, and they will get all the coverages.) An exemption from these minimum coverages "authorizes" employers to do something different, and thereby deprive their employees of the minimum coverages through either employment or purchase on the exchanges. The "grandfather" exemption, whatever else we say about it (such as its design as a transition rule), also authorizes deprivation of coverages, but NOT as a result of religious belief. The Establishment Clause limits the power of government to authorize employers to deprive employees of minimum coverages (or other statutorily mandatory terms of the employment relation) for reasons of employer religious belief. (Maybe Mark and others think Caldor is wrong; but if it's right, there is an Establishment Clause problem here, and it doesn't go away just because Hobby Lobby and Conestoga Wood have ignored it in the litigation thus far.) On Thu, Feb 20, 2014 at 7:01 PM, Scarberry, Mark < mark.scarbe...@pepperdine.edu> wrote: > Two quick points before I have to prepare for class: > > > > We are on a slippery slope when we refer to someone as seeking to have > "the government[] ... authorize [it] to act on religious beliefs in ways that > harm others," when what is at stake is whether the government can force > that person to do something for others in violation of religious > conscience. This comes very close to saying that the government authorizes > whatever it does not prohibit. > > > > Political considerations should play no role when we ask whether the > government has another way to advance its interests. Regardless of whether > the people or their representatives would choose to use that other way, it > must be treated as available for purposes of constitutional analysis. The > choice not to use it may show that the government is not terribly committed > to advancing the particular interest that is at stake, but in any event a > refusal of the government (a government by the people, right?) to utilize a > means of furthering its interests is not a reason for limiting the freedoms > of those who do not want to be used to advance that interest. The costs of > using the alternative may be relevant, but the refusal of the people to > authorize its use is not. > > > > Mark > > > > Mark S. Scarberry > > Professor of Law > > Pepperdine Univ. School of Law > > > > > > > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Ira Lupu > *Sent:* Thursday, February 20, 2014 3:44 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: recommended Hobby Lobby posts > > > > 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. > -- 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.
