I don't find the proposition to be particularly comforting that religious liberty concerns must take a back seat in areas "highly regulated" by the government as opposed to "lightly regulated" ones. Instead, it seems to me that the need to vigorously protect free exercise of religion is of greater importance in those areas of life where government intrusion is higher. More fundamentally, the view that the free exercise of religion matters less when the government has already occupied the regulatory space raises the question of where does the right to free exercise of religion come from at all. Is the protection of religious exercise just a gift of a positivist state that sees some utilitarian benefit in providing some of its citizens a right to practice religion? (E.g., wouldn't it be quaint if our government allowed a few Mennonites-so long as they don't take their faith too seriously). Or does the government protect the free exercise of religion because it recognizes that following one's conscience in religious matters is something that is in the very nature of its people and is therefore a fundamental right that exists in all people prior to the state even existing? Under the first view, what the state gives, the state can take away. Under the second view, the power of the state is necessarily constrained by the existence of fundamental rights that inhere in the very nature of the people. Yes, the government can limit exercise of religion in the second view, but only where it truly satisfies strict scrutiny; if the government exercises its power more broadly to limit free exercise of religion, it loses its legitimacy by denying its people the ability to live and act in accordance with something that makes them human in the first place-the ability to live and act in accordance with their religiously informed conscience.
On the substance, I would also disagree that Hobby Lobby and Conestoga have "ignored" the so-called Caldor / Establishment Clause problem of needing to avoid harm to 3rd parties. To the contrary, the briefs deal extensively with whether the alleged harm to 3rd parties-i.e., increasing the number of women who won't get free abortifacients /contraceptives--qualifies as a compelling government interest. The briefs convincingly demonstrates that this doesn't qualify as a compelling government interest because the regulatory regime established by the government already allows for large numbers of women not to get free abortifacients /contraceptives from their employers (i.e., women in grandfathered plans, plans with employers who employ less than 50 employees, and plans with those employers the Administration (grudgingly) conceded were sufficiently religious). Where so many exceptions to this interest already exist, this doesn't rise to the level of a compelling government interest. Moreover, the fact that other exceptions are given for non-religious reasons means that this is not a case in which an exception has been given for uniquely religious reasons, thereby further avoiding an Establishment Clause concern. Grace and peace to you, Derek L. Gaubatz IMB General Counsel Our vision is a multitude from every language, people, tribe and nation knowing and worshipping our Lord Jesus Christ. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Thursday, February 20, 2014 8:27 PM To: Law & Religion issues for Law Academics Subject: Re: recommended Hobby Lobby posts 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.)
_______________________________________________ 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.
