Many employers are choosing and will choose to drop or not offer employee health plans. Do you think they think they thus become "second class"? They still would offer their employees all the benefits but this one -- and higher salaries, to boot, from the money they'd saved.
"becoming a second class employer" is a conclusory label, not supported by any facts, let alone facts sufficient to satisfy Iqbal/Trombley. What's more, even if there were some evidence proferred that *some *observers (who? how many?) would then conclude that HL is a "second class employer," that's still not enough to establish substantial pressure to violate one's religious precepts. If a little bad publicity were all it took to coerce Hobby Lobby to offer contraceptive coverage, it would have done so by now, since it sure must have alienated a bunch of actual and potential female employees with the position it's taking. (Please note that I am most assuredly *not *suggesting that Hobby Lobby should have swallowed its beliefs in order to avoid employee bad will. To the contrary. I'm merely suggesting that the prospect of a little bad publicity is hardly enough to exert substantial pressure on the Greens to violate their strongly held beliefs.) On Fri, Feb 21, 2014 at 6:05 PM, Gaubatz, Derek <dgaub...@imb.org> wrote: > We've been down this road before: forcing plaintiffs to choose between > abandoning their religious beliefs, paying crippling penalties, or becoming > a second-class employer that doesn't offer its employees benefits is a > government imposed substantial burden. It's only those employers with > religious objections to the abortifacient mandate who face these particular > set choices and that set of choices only arises because of the mandate. > Employers without religious objections to the abortifacient mandate aren't > put to these choices; if they choose to become the second-rate employer who > doesn't offer benefits, it's not because they were forced into that choice > at the price of abandoning their religious beliefs. > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman > *Sent:* Friday, February 21, 2014 5:26 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: RLPA history for RLUIPA > > > > Which tax? Hobby Lobby, like any employer, can choose not to offer an > employee health care plan if it does not wish to comply with any of the > many requirements that apply to all such plans -- or for any other reason, > for that matter. If it does so, it will pay a tax assessment to help > subsidize the government subsidy on the exchanges . . . but that tax will > pale in comparison to the savings it will realize by not having to pay > insurance premiums and the costs of plan administration. > > > > In any event, the question is not whether Hobby Lobby is "burdened" at > all, but whether federal law imposes a *substantial burden* -- in this > case, whether the law substantially pressures HL to retain its plan > notwithstanding the religious objection. HL has not pleaded facts to > demonstrate that it would be subject to such significant pressure -- it has > offered only conclusory statements. > > > > On Fri, Feb 21, 2014 at 4:54 PM, Michael Worley <mwor...@byulaw.net> > wrote: > > Yes, but the tax in and of itself is a burden on Hobby Lobby. > > > > On Fri, Feb 21, 2014 at 2:35 PM, Marty Lederman <lederman.ma...@gmail.com> > wrote: > > > > Actually, FWIW, Hobby Lobby is not required to provide contraception, or > even to provide reimbursement for its purchase. See > http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html > > >
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