Re: Eugene's Blog Post on Liberals and Exemption Rights
Rick, In Hobby Lobby, the majority says: "It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) (applying RLUIPA). That sentence quoted from Cutter relies on Caldor. These are both Establishment Clauses cases articulating a limit on permissive accommodations. We can argue about the scope of that limit, but as Nelson said earlier, it is surprising to see such resistance to even the general form of it. Micah On Apr 2, 2015, at 10:33 AM, Rick Garnett wrote: > Dear Nelson, > > I don't see that "the Hobby Lobby Court reaffirmed the principle against > burden-shifting in religion accommodations" or that "Justice Kennedy made it > central to his vote" if by "principle" here you mean the argument -- which, > of course, you and several others have very ably developed and expounded -- > that the Establishment Clause rules out (all?) legislative accommodations > that involve or impose third-party costs (on specific, identifiable third > parties). (I ask about "all" because my recollection is that you have said > that the accommodation at issue in Amos was / is permissible.) Justice > Ginsburg notes in a footnote that "the government’s license to grant > religion-based exemptions from generally applicable laws is constrained by > the Establishment Clause" but, it seems to me, she did not rely on this point > in her dissent, which seemed to me to be more about RFRA's particular > elements. Justice Kennedy says, in his penultimate paragraph, "[y]et neither > may that same exercise unduly restrict other persons, such as employees, in > protecting their own interests, interests the law deems compelling[,]" but he > seems to be doing so in the context of applying what he and the Court call > RFRA's "stringent" test and not necessarily to be invoking an Establishment > Clause constraint. And, Justice Alito does not mention the Establishment > Clause at all. > > I also continue to think -- although the conversation about the rule you and > other leading scholars propose is very important -- that it is not quite the > case that "the case law in both areas is lopsided in favor of the principle" > -- again, if the "principle" is the fairly strong Establishment Clause > constraint you all have proposed -- but . . . disagreement among colleagues > helps make life interesting and I guess we just understand Caldor and Cutter > differently. Marc DeGirolami's discussion (here: > http://mirrorofjustice.blogs.com/mirrorofjustice/2013/12/exemptions-from-the-mandate-do-not-violate-the-establishment-clause.html) > and Eugene Volokh's (here: > http://volokh.com/2013/12/04/3b-granting-exemption-employer-mandate-violate-establishment-clause/) > were, for me, helpful. > > With respect to your (and others') Establishment Clause argument, I do have a > quick question. (I am sorry if I am forgetting an answer that you have > already presented in your scholarship!) Do you think we should think of the > no-burden-shifting rule as applying, in a sense, only *after* we have > identified whatever limits on government regulation the First Amendment might > require (e.g., the ministerial exception), and as applying only as a > constraint on discretionary accommodations, or should we think of the rule as > kicking in "earlier," and as helping to fix the point where the First > Amendment rights of, say, Hosanna-Tabor school end? Or does it not matter? > Again, please feel free just to refer me to something else. > > All the best, > > Rick > > > Richard W. Garnett > Professor of Law and Concurrent Professor of Political Science > Director, Program on Church, State & Society > Notre Dame Law School > P.O. Box 780 > Notre Dame, Indiana 46556-0780 > 574-631-6981 (w) > 574-276-2252 (cell) > rgarn...@nd.edu > > To download my scholarly papers, please visit my SSRN page > > Blogs: > > Prawfsblawg > Mirror of Justice > > > Twitter: @RickGarnett > > On Wed, Apr 1, 2015 at 7:07 PM, Nelson Tebbe > wrote: > > > Thanks, Alan. Speaking again only for myself, I am open to some balancing, > not only as to this particular principle (against burden shifting to third > parties) but also as a general methodology, as you know. But the conversation > is not yet at that point. Right now, the main debate is over whether the > principle even exists in constitutional law, and what its most basic > applications might be, not over its contours. As a matter of doctrine, the > Hobby Lobby Court reaffirmed the principle against burden-shifting in > religion accommodations, and Justice Kennedy made it central to his vote, but > there is some troubling language in the opinion (see, e.g., footnote 37 and > the sharp division between RFRA and pre-Smith cases). As a matter of > application, the Hobby Lobby Court did not make its ruling contingent on th
Re: Question from Prof. Nancy Leong about how atheists are treated under various legal rules
Nelson Tebbe, Nonbelievers, 97 Va. L. Rev. (2011) Caroline Corbin, Nonbelievers and Government Religious Speech, 97 Iowa L. Rev. 347 (2011) On Jun 29, 2014, at 12:40 PM, Volokh, Eugene wrote: >Prof. Nancy Leong asked me to forward this query: > > > > What is the best work on atheists are treated under the Establishment Clause, > state constitutions, and/or Title VII? I have been surprised by how little > I've found in law reviews, and wondered whether there is a legal scholar who, > for example, has mostly written books on this. > > > > To provide some context, this is for one of my summer projects, which focuses > on what I'm provisionally calling "negative identity" until I can think of a > better word. I'm using the term to mean an identity category that's defined > by the absence of something that many people in society deems important: > religion, sex, a partner, children. My tentative descriptive claim is that > the law often protects people who are religious, sexual, partnered, and > parents better than it protects atheists, asexuals, singles, and the > childfree, and if my descriptive claims is correct, I'm interested in > thinking about why that would be and if it's justified. > > > > If you could e-mail her at nle...@law.du.edu, that would be great. Thanks, > >Eugene > > > ___ > 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. ___ 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.
Re: Hobby Lobby transcript
In the context of discussing Marty's substantial burden argument, Justice Kagan invoked Braunfeld. I made a similar comparison on the listserv back in December: > Braunfeld might support Marty's argument. The government provides an option > to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't > burden religion, and even if it's somewhat more expensive, Braunfeld seems to > contemplate that laws will sometimes work in this way. Provided a law doesn't > directly compel anyone to violate their religious beliefs, its imposition of > additional costs on religious practice is not sufficient to show a > substantial burden. > > Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And > maybe there are other problems with the analogy, but I wonder if the "no > employer mandate" argument turns on an empirical claim, at least if the cost > differentials are not so significant as to be tantamount to coercion -- as in > the 4980D tax for failing to comply with coverage requirements. Here's Justice Kagan (transcript p. 24): > 15 JUSTICE KAGAN: Well, let's say that that's > 16 right. Let's say that they have to increase the wages a > 17 little bit. I mean, still we are talking about pretty > 18 equivalent numbers. Maybe it's a little bit less; maybe > 19 it's a little bit more. But this is not the kind of > 20 thing that's going to drive a person out of business. > 21 It's not prohibitive. > 22 It's like the thing that we talked about in > 23 Braunfeld where we said, you know, maybe if the store > 24 can't stay open 7 days a week, it makes a little bit > 25 less money. But so be it, is what we said. If it works, I do think this argument raises factual questions that would have to be addressed on remand. On Mar 25, 2014, at 4:19 PM, Marty Lederman wrote: > is here: > > http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-354_5436.pdf > > Audio should be available later in the week. > > I'd be curious to hear what others who attended thought of the argument. > > I'll mention only three things of particular note: > > First, several of the Justices, including Justice Kennedy, appeared to be at > least somewhat sympathetic to the argument I've been stressing that the > employers' religion might not be substantially burdened because they have the > option of not offering a plan (which might well save them money). > > Second, there appeared by the end of the argument to be a very real > possibility of a judgment that the government must advance its interests > through the less restrictive means of offering its secondary accommodation > (payment required of the issuer or the TPA) to for-profit corporations, as > well. This idea seemed to have traction with Justices of varying > perspectives, and neither advocate resisted it much -- indeed, Paul Clement > appeared to go out of his way in rebuttal to encourage it, and to stress that > he had hinted at it on page 58 of the Hobby Lobby brief. > > Third, Justices Alito and Scalia tried to argue that RFRA goes much further > than codifying the pre-Smith FEC doctrine . . . but I am very doubtful there > are five votes for that. > ___ > 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. ___ 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.
Re: Are large employers really better off dropping health insurance?
Even if some employers have to pay more under the 4980H(a) tax, would that be sufficient to show a substantial burden? In Braunfeld v. Brown, the Court held that laws may indirectly burden religious believers even when they impose "some financial sacrifice in order to observe their religious beliefs." I'm not saying Braunfeld is fully analogous. The Sunday closing law did not require Orthodox Jews to violate their religious beliefs, but that law did make it more expensive for them to compete with businesses that opened on Saturday. (The Court also noted the state could have exempted Orthodox Jews from the closing law but did not, even though other states did offer such an exemption.) Braunfeld might support Marty's argument. The government provides an option to all employers: (1) pay a tax, or (2) provide coverage. If (1) doesn't burden religion, and even if it's somewhat more expensive, Braunfeld seems to contemplate that laws will sometimes work in this way. Provided a law doesn't directly compel anyone to violate their religious beliefs, its imposition of additional costs on religious practice is not sufficient to show a substantial burden. Marty didn't cite Braunfeld in his post, so maybe he wouldn't rely on it. And maybe there are other problems with the analogy, but I wonder if the "no employer mandate" argument turns on an empirical claim, at least if the cost differentials are not so significant as to be tantamount to coercion -- as in the 4980D tax for failing to comply with coverage requirements. On Dec 17, 2013, at 9:10 PM, Volokh, Eugene wrote: > The heart of Marty’s argument (I focus for now on item 1 below) is, I think, > an empirical claim: Large employers such as Hobby Lobby would be better off > just dropping coverage, paying the $2000/employee/year tax, “us[ing] some of > [the] enormous cost savings” to compensate employees for the lost coverage, > thus keeping the employees happy, and then pocketing the rest of the > “enormous cost savings.” (Indeed, if employees grumble over the > inconvenience or just the change, the employers can split some of the rest of > the enormous cost savings with the employees -- a win-win proposition for > employers and employees.) And, if Marty is right, this would be true for > employers generally, not just religious employers. We should thus expect a > large fraction of savvy employers to take advantage of this option, purely > out of respect for Mammon quite regardless of God. > > But I wonder whether this is empirically likely to be true, given not just > the nondeductibility of the tax, but also other factors, such as payroll > taxes on the compensation payment to the employees. It’s not surprising that > the Justice Department hasn’t made this argument, since the Administration > has long argued (unless I’m mistaken) that large employers won’t drop > employer-based health insurance. And the Congressional Budget > Office,http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/121xx/doc12119/03-30-healthcarelegislation.pdf, > likewise took the view that only a tiny percentage of employers would drop > their health insurance, because “the legislation leaves in place substantial > financial advantages for many people to receive insurance coverage through > their employers, and it provides some new incentives for employers to offer > insurance coverage to their employees.” > > Now of course that was in 2011, and perhaps the analysis today would be > different. But the CBO’s estimates still give me pause. And if the CBO is > right, and large employers generally would lose financially -- rather than > gain from capturing some of the “enormous cost savings” -- by dropping health > insurance and adequately compensating employees, then I would think Hobby > Lobby and others would be in the same position. The mandate, even enforced > as a tax, thus would be a substantial burden. > > Am I mistaken in this? Marty, do you have any pointers to studies that > support your sense of the money flows on this, and contradict what I see as > the CBO’s view? > > Eugene > > > Marty writes: > > 1. On your first point, even if the 4980H(a) tax were the equivalent of a > $3000 assessment (because it's paid with after-tax dollars), the average cost > for providing health insurance to employees is, as I understand it, closer to > $10,000, so the employer would save about $7000 per employee. (In any event, > there are no allegations in these cases that HL or CW is significantly > differently situated than a typical employer, e.g., that they have a > workforce comprised of almost all single employees with no family coverage.) > > In order to remain competitive for recruiting or retaining most of their > employees, the plaintiffs wouldn't have to kick in any extra money in salary, > because the employees would have their exchange-purchased plans subsidized by > the federal government (both in
Re: Hobby Lobby posts
In the interest of collecting arguments related to Hobby Lobby, here are links to some posts that Nelson Tebbe, Richard Schragger, and I have written on Establishment Clause arguments related to the case: The Establishment Clause and the Contraception Mandate http://balkin.blogspot.com/2013/11/the-establishment-clause-and.html Hobby Lobby and the Establishment Clause, Part II: What Counts as a Burden on Employees? http://balkin.blogspot.com/2013/12/hobby-lobby-and-establishment-clause.html Hobby Lobby and the Establishment Clause, Part III: Reconciling Amos and Cutter http://balkin.blogspot.com/2013/12/hobby-lobby-and-establishment-clause_9.html And Nelson Tebbe and I had this article in Slate: Obamacare and Religion and Arguing off the Wall: http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.htm On Dec 16, 2013, at 1:53 PM, Marty Lederman wrote: > Since no one else has mentioned it, I will: > > Eugene recently published a remarkable series of posts on the case -- so much > there that virtually everyone on this listserv is sure to agree with some > arguments and disagree with others. It's an amazing public service, whatever > one thinks of the merits. He and I turned the posts into a single, 53-page > (single-spaced!) Word document for your convenience: > > www.volokh.com/wp-content/uploads/2013/12/hobbylobby.docx > > I've just started my own series of posts on the case on Balkinization -- > links to the first three below. The second is about the thorny > contraception/"abortifacient" issue (nominally) in play in the two cases the > Court granted. In the third post, I endeavor to explain that the case is > fundamentally different from what all the courts and plaintiffs (and press) > have assumed, because there is in fact no "employer mandate" to provide > contraception coverage. > > http://balkin.blogspot.com/2013/12/hobby-lobby-part-i-framing-issues.html > > http://balkin.blogspot.com/2013/12/hobby-lobby-part-ii-whats-it-all-about.html > > http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html > > Thanks to those of you who have already offered very useful provocations and > arguments on-list; I'd welcome further reactions, of course. > ___ > 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. ___ 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.
Re: Free Exercise, compelled subsidies, and Abood
I'll stop after this, but I realize that RFRA requires strict scrutiny for substantial burdens on religion. Under that standard, if Knox and United Foods are right about Abood, then, by analogy, Hobby Lobby should be a relatively easy case. Here, Glickman is relevant because the Court said that even if the compelled subsidy for industry advertising were conscientiously opposed, thus implicating free speech rights, it is permitted under Abood. (And the facts in Glickman are, at best, difficult to distinguish from those in United Foods.) But maybe it doesn't matter -- Keller would do similar work, and it clearly relied on Abood. If Knox and United Foods are wrong about the standard of review under Abood, then A's conscientious objection to compelled support for B's speech (under Abood) gets less protection that C's religious conscientious objection to compelled support for B's speech (under RFRA). Maybe that is Congress's judgment, but I think we can still ask whether it makes any sense. Micah On Dec 5, 2013, at 3:03 AM, "Volokh, Eugene" wrote: > I would assume that what justifies the asymmetry is, in large > measure, Congress’s judgment. In RFRA, Congress said that substantial > burdens on religious exercise lead to strict scrutiny. Substantial burdens > include compulsion to do what one thinks is religiously forbidden; that would > include compelled payments that one thinks are religiously forbidden. Thus, > such compelled payments lead to strict scrutiny. Why should it matter that > Abood held that compelled payments absent a religious objection don’t lead to > strict scrutiny? > > I also still don’t see how Glickman is relevant, given that > it clearly didn’t apply strict scrutiny, partly because the law there was > seen as a conduct regulation that didn’t really implicate free speech rights. > RFRA, of course, does impose strict scrutiny on conduct regulations that > don’t really implicate free speech rights. > > Eugene > ___ 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.
Re: Free Exercise, compelled subsidies, and Abood
My point is that if you read Abood as applying a lower standard of review, then why apply a higher one for compelled subsidies in Hobby Lobby? What justifies the asymmetry, especially given that Abood identifies the non-union member's interest as one of freedom of conscience? And if you read Abood as applying strict scrutiny (following United Foods and Knox), then it seems as easily satisfied in Hobby Lobby as it was in cases like Keller and Glickman. And I don't think those cases can be dismissed as irrelevant, given that they hold that the test in Abood was satisfied by the regulations in question, even if Abood could be distinguished on other grounds (which may have been true in Glickman, though not in Keller). On Dec 5, 2013, at 1:52 AM, "Volokh, Eugene" wrote: > Well, the most recent case, Knox, does label Abood as > applying strict scrutiny. But even if Abood applied lower scrutiny (which I > agree is a possible interpretation), then wouldn’t that cut in favor of Hobby > Lobby? After all, that a requirement passed lower scrutiny under the Free > Speech Clause in Abood doesn’t tell us much about whether the requirement > should pass strict scrutiny under RFRA. > > Nor is Southworth or the compelled commercial advertising cases particularly > relevant; those cases deliberately did not invoke strict scrutiny; indeed, > both took pains to distinguish Abood. > > Eugene > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman > Sent: Wednesday, December 04, 2013 10:15 PM > To: Law & Religion issues for Law Academics > Subject: Re: Free Exercise, compelled subsidies, and Abood > > I agree that, in Abood, the Court held that the compelled subsidy burdened > First Amendment interests. I didn't mean to suggest otherwise (and indeed > I've made the same point in an article discussing Abood), although re-reading > my post below, I can see that I was not clear about this. My question was > about why the conscientious objection in Abood is dismissed (in part), > whereas in Hobby Lobby it is taken to have stronger force, even though both > cases seem to involve similar forms of compelled subsidies. > > I also agree that the Court's holding in Abood is based on the government's > interest in preserving labor peace. But I'm not convinced thatAbood is best > read as having applied strict scrutiny. (Even at the time, concurring in the > judgment in Abood, Justice Powell complained that the Court had not required > the government to show that its interest was "paramount, one of vital > importance," or that its "means [were] closely drawn to avoid unnecessary > abridgment…") Most of the later compelled support cases (e.g., Keller, > Glickman) also don't seem to apply such stringent forms of review. > > But even if you think Abood and its progeny require strict scrutiny, the > comparison still seems bad for Hobby Lobby. The Abood Court directly > addressed the objection that a non-union member might be conscientiously > opposed to paying for union agreements that included medical plans covering > abortion. One response here might be that labor peace is a more important > interest than those asserted in Hobby Lobby. But in later compelled support > cases, the interests involved seem rather less significant -- promoting the > stone fruits industry, or subsidizing student extra-curricular activities? > One could make a similar point about how those cases treat the question of > least restrictive means. Again, I realize that my question is one of analogy, > but the Abood line seems to set the bar rather low. > > Micah > > On Dec 4, 2013, at 5:06 PM, "Volokh, Eugene" wrote: > > > Maybe I’m missing something, but the Court (1) found that the > requirement of payment to the union did substantially burden First Amendment > interests, but (2) this burden was justified in that case, and only as to > collective bargaining expenses, by the “important government interest” in > preserving labor peace. (Since then, that test has been seen as an > application of strict scrutiny, but the important vs. compelling interest > lingo wasn’t as firmly established back then.) So Abood cuts in favor of > Hobby Lobby on the substantial burden side, I would think. > > Eugene > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman > Sent: Wednesday, December 04, 2013 12:43 PM > To: Law & Religion issues for Law Academics > Subject: Free Exercise, compelled subsidies, and Ab
Re: Free Exercise, compelled subsidies, and Abood
I agree that, in Abood, the Court held that the compelled subsidy burdened First Amendment interests. I didn't mean to suggest otherwise (and indeed I've made the same point in an article discussing Abood), although re-reading my post below, I can see that I was not clear about this. My question was about why the conscientious objection in Abood is dismissed (in part), whereas in Hobby Lobby it is taken to have stronger force, even though both cases seem to involve similar forms of compelled subsidies. I also agree that the Court's holding in Abood is based on the government's interest in preserving labor peace. But I'm not convinced that Abood is best read as having applied strict scrutiny. (Even at the time, concurring in the judgment in Abood, Justice Powell complained that the Court had not required the government to show that its interest was "paramount, one of vital importance," or that its "means [were] closely drawn to avoid unnecessary abridgment…") Most of the later compelled support cases (e.g., Keller, Glickman) also don't seem to apply such stringent forms of review. But even if you think Abood and its progeny require strict scrutiny, the comparison still seems bad for Hobby Lobby. The Abood Court directly addressed the objection that a non-union member might be conscientiously opposed to paying for union agreements that included medical plans covering abortion. One response here might be that labor peace is a more important interest than those asserted in Hobby Lobby. But in later compelled support cases, the interests involved seem rather less significant -- promoting the stone fruits industry, or subsidizing student extra-curricular activities? One could make a similar point about how those cases treat the question of least restrictive means. Again, I realize that my question is one of analogy, but the Abood line seems to set the bar rather low. Micah On Dec 4, 2013, at 5:06 PM, "Volokh, Eugene" wrote: > Maybe I’m missing something, but the Court (1) found that the > requirement of payment to the union did substantially burden First Amendment > interests, but (2) this burden was justified in that case, and only as to > collective bargaining expenses, by the “important government interest” in > preserving labor peace. (Since then, that test has been seen as an > application of strict scrutiny, but the important vs. compelling interest > lingo wasn’t as firmly established back then.) So Abood cuts in favor of > Hobby Lobby on the substantial burden side, I would think. > > Eugene > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman > Sent: Wednesday, December 04, 2013 12:43 PM > To: Law & Religion issues for Law Academics > Subject: Free Exercise, compelled subsidies, and Abood > > The religious employers in the contraception mandate cases are arguing that > they are substantially burdened by being required to pay for insurance > coverage that conflicts with their religious beliefs. The basic structure of > this claim is: the government is forcing A to pay B for something that > conflicts with A's conscience. This is a claim about compelled subsidies. > > My question is why this argument should be stronger in the RFRA/Free Exercise > context than it is the free speech context. In Abood v. Detroit Board of > Education, the Court held that non-union members could be compelled to pay > for the equivalent of union dues, despite their conscientious objection. And > here is what the Court said about the substantive content of that objection: > > "An employee may very well have ideological objections to a wide variety of > activities undertaken by the union in its role as exclusive representative. > His moral or religious views about the desirability of abortion may not > square with the union's policy in negotiating a medical benefits plan." 431 > U.S. 209, 222 (1977) > > But those objections, based on the "right to freedom of conscience, freedom > of association, and freedom of thought" (quoting Hansen, on which Abood > relies), were not sufficient to defeat the state's requirement that non-union > members contribute to the union's collective bargaining activities. > > If employees can be required to support a union's bargaining, including for > medical plans that include abortion, why isn't the same true for employers > with respect to paying for insurance that includes contraception? > > I know that some people think Abood is wrongly decided. But if that decision > is wrong because there is no First Amendment interest implicated when one is > compelled by the go
Free Exercise, compelled subsidies, and Abood
The religious employers in the contraception mandate cases are arguing that they are substantially burdened by being required to pay for insurance coverage that conflicts with their religious beliefs. The basic structure of this claim is: the government is forcing A to pay B for something that conflicts with A's conscience. This is a claim about compelled subsidies. My question is why this argument should be stronger in the RFRA/Free Exercise context than it is the free speech context. In Abood v. Detroit Board of Education, the Court held that non-union members could be compelled to pay for the equivalent of union dues, despite their conscientious objection. And here is what the Court said about the substantive content of that objection: "An employee may very well have ideological objections to a wide variety of activities undertaken by the union in its role as exclusive representative. His moral or religious views about the desirability of abortion may not square with the union's policy in negotiating a medical benefits plan." 431 U.S. 209, 222 (1977) But those objections, based on the "right to freedom of conscience, freedom of association, and freedom of thought" (quoting Hansen, on which Abood relies), were not sufficient to defeat the state's requirement that non-union members contribute to the union's collective bargaining activities. If employees can be required to support a union's bargaining, including for medical plans that include abortion, why isn't the same true for employers with respect to paying for insurance that includes contraception? I know that some people think Abood is wrongly decided. But if that decision is wrong because there is no First Amendment interest implicated when one is compelled by the government to subsidize some activity to which one conscientiously objects, then why is there an interest under RFRA or the Free Exercise Clause with respect to the same form of compelled subsidies? To this point, much of the criticism of Hobby Lobby's compelled subsidy argument has focused on comparisons with Zelman. If third party choices function as a "circuit breaker" in the vouchers context, the same logic would seem to apply with respect to insurance coverage. Just as taxpayers can be required to subsidize a set of choices that includes religious schools (to which some object), employers can be required to subsidize a set of choices that includes contraception (to which some object). I think that argument has some force, especially given that the Court (in Winn and Hein) otherwise conceives of the establishment clause harm as an infringement on the taxpayer's freedom of conscience. But even if one sets aside the comparison with Zelman, there is still a puzzling asymmetry in how compelled subsidies are being conceived under RFRA and how they are treated under Abood. Micah ___ 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.
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
Alan, Thanks for this response, and sorry for not replying sooner. I have been thinking about it since yesterday. If I understand correctly (and I'm not sure about this), you're saying that the government would violate RFRA if it did not act to avoid an as-applied Establishment Clause challenge by providing coverage to non-beneficiaries. But it is hard for me to see the Establishment Clause violation as stemming from anything other than RFRA. Providing a contraception mandate without government coverage for employees does not lead to a constitutional violation. Only if RFRA is construed to require a religious exemption do we reach the constitutional problem. As Marty suggested earlier today, one way to avoid that problem is by incorporating Establishment Clause concerns into the compelling interest analysis. But even if we don't do that, I don't think that government actions that fail to avoid potential Establishment Clause harms are themselves violations of RFRA. In Hobby Lobby, RFRA does not require the government to respond to a constitutional defect by compensating the non-beneficiaries. Consider an example: Suppose that the religious employers win their suit in Hobby Lobby. They get a religious exemption under RFRA from the contraception mandate. Suppose further (following Eugene's recent argument) that some non-religious employers seek a comparable exemption -- say, because they have moral objections to facilitating the use of abortifacients. These non-religious employers claim that RFRA violates the Establishment Clause because it provides exemptions to religious employers but not to them. Suppose for the sake of argument that a court agrees (perhaps following Justice Harlan's view in Welsh). Now the government has a choice: either eliminate the exemption or broaden it to include non-religious objectors. If I understand your view correctly, the government would have to expand the exemption. If it eliminated the exemption, it would burden religious believers in violation of RFRA. The upshot is that it would be a violation of RFRA to read RFRA in a way that excludes non-religious claims. And that seems like a strange outcome. I don't think we have to read RFRA to demand this kind of recursivity -- either in my example or in other cases (say, in Caldor). As Cutter recognizes, the Establishment Clause imposes limits, and those limits can be incorporated into RFRA through compelling interest analysis. But even if they are not (as apparently is the case in the Hobby Lobby litigation), the government can respect those limits as independent grounds for rejecting harms to non-beneficiaries. Micah On Dec 2, 2013, at 4:48 PM, Alan Brownstein wrote: > Micah, > > I guess the question for me is whether the fact that the government has not > offered to provide coverage to the employees of exempt organizations > constrains permissive accommodations under a statute like RFRA. If the > provision of coverage to the employees of exempt organizations is a less > restrictive alternative that adequately furthers the government’s asserted > compelling interests, why doesn’t that lead to the conclusion that the > government has violated RFRA. Or to put it another way, why should the > government’s failure to adopt a less restrictive alternative be the basis for > denying the religious objector’s claim under RFRA? > > If we apply strict scrutiny in a free speech case and the government’s > compelling state interest is to avoid unruly behavior by the audience if an > unpopular speaker is permitted to speak, the government can’t fortify its > argument by refusing to provide adequate police to preserve order during the > event. Government providing police to preserve order is a less burdensome > alternative than silencing the speaker whether the government actually > provides police services or not. > > I assume one response to this argument would be that the Establishment Clause > prohibits the burdening of third parties – but that leads to the question of > which government action violates the Establishment Clause. Should we view the > government’s compliance with RFRA as the Establishment Clause violation or > the government’s imposition of the mandate (which created a duty to exempt > religious objectors under existing law – e.g. RFRA) without providing for > coverage of employees working for exempt organizations as the problem. (This > last argument is very tentative. I just thought of it and will withdraw it if > it makes no sense.) > > Alan > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Micah Schwartzman > Sent: Monday, December 02, 2013 12:38 PM > To: Law & Religion issues for Law Academics > Subject: Re: The Establishment
Re: The Establishment Clause, burden on others, the employer mandate, and the draft
Alan, I think you're right that the problem of burdening non-beneficiary employees could be resolved by the government providing them with full coverage (as I think Nelson Tebbe said in an earlier post). But until that happens, those employees have a claim in this litigation that hasn't yet been fully presented -- and one that, as Gedicks argues, constrains permissive accommodations (including RFRA). I should add that government coverage for non-beneficiaries might not solve all the possible Establishment Clause problems with a religious exemption. If there are non-religious employers who object to covering, e.g., abortifacients, they might claim that a religious exemption treats them unfairly. And depending on how the costs sort out, I suppose it's possible that there might be complaints from non-exempted employers (as in Texas Monthly). Micah On Dec 2, 2013, at 2:49 PM, Alan Brownstein wrote: > Micah, if the issue is diffusing the burden so that it doesn't fall on a > limited class of identifiable individuals, why isn't that problem solved by > the government taking over the task of providing insurance coverage for the > employees of exempt organizations. Isn't the government a sufficiently > effective cost-spreader to resolve this concern? > > Alan > > > Eugene's suggestion that the religious exemption from the contraception > mandate be analogized to the draft protester cases is anticipated by Gedicks > and Van Tassell in their article, RFRA Exemptions from the Contraception > Mandate: An Unconstitutional Accommodation of Religion > (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516). > > Gedicks and Van Tassel argue that the burden of the exemption is not material > because it would not affect the decision-making of non-pacificists in > considering whether to participate in the draft. That is because the burden > is minor and remote -- for any individual, a small number of exemptions > amounts to a minor increase in the probability of being selected for the > draft. > > Whethers Gedicks and Van Tassel are right, there is at least the difference > that the burden of the religious exemption from the contraception mandate, > like the burden in Caldor, falls clearly and specifically on identifiable > individuals. > > > > > ___ > 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. ___ 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.
The Establishment Clause, burden on others, the employer mandate, and the draft
Eugene's suggestion that the religious exemption from the contraception mandate be analogized to the draft protester cases is anticipated by Gedicks and Van Tassell in their article, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328516). Gedicks and Van Tassel argue that the burden of the exemption is not material because it would not affect the decision-making of non-pacificists in considering whether to participate in the draft. That is because the burden is minor and remote -- for any individual, a small number of exemptions amounts to a minor increase in the probability of being selected for the draft. Whethers Gedicks and Van Tassel are right, there is at least the difference that the burden of the religious exemption from the contraception mandate, like the burden in Caldor, falls clearly and specifically on identifiable individuals. It is a separate question whether broadening the exemption to include non-religious objectors would cure a possible constitutional defect under the Establishment Clause. If the reason for broadening the exemption is a based on a sham purpose -- that is, if it is broadened only for the purpose of saving an otherwise unconstitutional exemption, rather than to accommodate non-religious objectors (as in Seeger) -- I wonder whether that is (or should be?) permissible. It could be framed as a form of constitutional avoidance, but, given the history, it might also look like an impermissible purpose. ___ 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.
Re: Mitigation of Damages
There is an interesting case from the 1930s involving a Christian Scientist. The cite is Lange v. Hoyt, 114 Conn. 590. Micah J. Schwartzman Associate Professor of Law University of Virginia School of Law 580 Massie Road Charlottesville, VA 22903 (434) 924-7848 On Jul 10, 2009, at 3:57 PM, Douglas Laycock wrote: From time to time we have discussed on the list cases of Jehovah's Witnesses who are injured by a tortfeasor, who refuse a blood transfusion, and whose injury is aggravated or whose cure takes longer as a result. The cases go both ways. I am not trying to start that discussion up again, but I have a related factual question. Has anyone ever seen a similar case involving a Christian Scientist? I haven't done any serious looking, but I don't recall one. That seems a little odd, given that we seem to have a Jehovah's Witness case every few years. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713___ 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. ___ 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.
Statue of Jesus and the FHA
In response to Bloch v. Frischholz (7th Cir. 2008), which held that residents were not entitled under the Fair Housing Act (FHA) to post mezuzahs, Congress has been considering legislation to amend the FHA to protect religious symbols. Here is the text of the proposed amendment, titled the Freedom of Religious Expression in the Home Act of 2008 (H.R. 6932): Section 804 of the Fair Housing Act (42 U.S.C. 3604) is amended by adding at the end the following: "(g) To establish a rule or policy that prevents a person from displaying, on the basis of that person's religious belief, a religious symbol , object, or sign on the door, doorpost, entrance, or otherwise on the exterior of that person's dwelling, or that is visible from the exterior of that dwelling, unless the rule or policy is reasonable and is necessary to prevent significant damage to property, physical harm to persons, a public nuisance, or similar undue hardship." Suppose this amendment to protect religious symbols is passed. What would be the legal status of non-religious displays? If a homeowners' association adopts a policy barring all forms of displays (as was the case in Bloch), and if the FHA creates an accommodation for religious expression, would someone who wants to post a non-religious display have grounds to object? Suppose a resident posts a sign saying, "God loves McCain." Now another resident posts a sign that says "Vote Obama." The homeowners' association removes both signs. The McCain supporter makes a claim under the amended FHA to protect his religious expression. What about the Obama supporter? Here are a couple possibilities: (1) The Obama supporter might have an Establishment Clause challenge to the FHA amendment. The claim would be that the amendment is an accommodation that burdens non-beneficiaries. Citizens whose political views are religiously informed gain an advantage over citizens who aren't religious (or whose political views aren't religiously informed). (2) Perhaps the Obama supporter could also claim that the amendment in effect creates a public forum by restricting homeowners' associations from preventing certain forms of speech. But if that's the case, the amendment is viewpoint discriminatory, because it only protects religious speech. Any thoughts about those possible challenges?___ 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.
