One issue underlying Marty's very effectively presented argument about the absence of an employer mandate is what counts as the kind of substantial burden that warrants legal attention. Marty suggests that plaintiffs in Hobby Lobby need specific allegations and ultimately some direct proof to demonstrate adverse labor consequences or other economic costs that would result from Hobby Lobby dropping health care coverage for its employees. It may be however that these costs and consequences will be difficult to determine with any degree of certainty for the foreseeable future. How then should a court evaluate a religious liberty claim in light of this kind of indeterminacy? One possibility is to insist on proof by a preponderance of the evidence that Hobby Lobby's current employees would leave Hobby Lobby for other jobs and/or that prospective employees would be less likely to seek employment from Hobby Lobby. Another possibility is ask whether a reasonable employer would foresee serious labor problems or other economic costs if it dropped current health care coverage for its employees. This argument suggests that risk of harm can constitute a substantial burden.
There is certainly language in the Town of Greece plurality opinion which suggests that substantial, specific evidence is necessary to demonstrate a legally cognizable burden on religious liberty. But there is also language that suggests that the Court might ask what a reasonable employer might foresee to be the consequences of dropping health care coverage. If the Court adopts that approach, the controlling question would be what understanding of social reality would the Court utilize in determining the reasonableness of Hobby Lobby's concerns. As Marty's post implies, in the real world there may be legitimate arguments to be raised and evaluated on both sides of this question. If Town of Greece is any guide, however, we should expect the Court to imagine a social reality which enables it to reach a conclusion consistent with the ideological predispositions of the Justices -- without regard to whether that imaginary world bears any resemblance to the world in which people actually live, make business decision, and exercise religion. Alan Brownstein ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Marty Lederman [lederman.ma...@gmail.com] Sent: Sunday, June 15, 2014 2:04 PM To: Law & Religion issues for Law Academics Subject: Two more Hobby Lobby posts I'm under no illusion that such things could possibly have any influence on the Court at this late date (majority opinions having been in circulation for at least two weeks now), but thought it might be worth posting two further entries on Hobby Lobby, in anticipation of the decision: http://balkin.blogspot.com/2014/06/hobby-lobby-part-xiv-how-this-weeks.html http://balkin.blogspot.com/2014/06/hobby-lobby-part-xv-theres-no-employer.html The first is more about the Sixth Circuit's nonprofit decision from earlier this week; the second is about my pet "there is no employer mandate" argument -- how the Justices treated it at oral argument, and how a new S&P Report might bear on it. Many of you will recognize much of these as derived from our discussions here, for which I'm very grateful.
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