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 SP 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. ___ 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: Two more Hobby Lobby posts
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 SP 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. ___ 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: Two more Hobby Lobby posts
Thanks for that extremely thoughtful response, Alan. I think you're onto something important: I imagine that even if the SP report is correct, and many employers will drop their health care plans in the coming years, there is a definite first mover phenomenon at work -- that is to say, the main reason any employer would be reluctant to drop its plan just now is precisely that there are too many uncertainties and it wishes to avoid any risks, and is therefore waiting to see what, e.g., its competitors will do. That is entirely understandable employer behavior. The question, however, is why the female employees of that employer should suffer the consequences if the employer opts not to take that chance just now, but opts instead to wait-and-see. If the mere *chance* of some marginal disadvantage in the relevant labor market -- a disadvantage, I should add, that may very well not result in any significant competitive disadvantage, assuming (as I think is probably fair) that the labor pool for arts supplies stores is fairly elastic -- is more important to the Greens than their alleged complicity with employees' use of contraception, then it's not obvious to me why the state should afford them an exemption that will redound to the significant detriment of their employees. On Sun, Jun 15, 2014 at 5:59 PM, Alan Brownstein aebrownst...@ucdavis.edu wrote: 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 SP 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. ___ 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
RE: Two more Hobby Lobby posts
I'm not sure that I understand your argument, Marty. Let me play it out to see if I have it right. As you suggest an employer might be wary of dropping the health care plans because of the uncertainties and potential risks of doing so. Let's say that two employers have the same religious objections to continuing the health care coverage if it includes the problematic contraceptives and fear the same risks of economic consequences. Let's assume that if push comes to shove, one of them would subordinate his religious convictions to alleviate these risks. This employer would keep the plan and violate his conscience.The other employer would drop the health plans come what may to stay faithful to his convictions. (Of course, in the real world it isn't always easy to predict what someone will do when push comes to shove -- but let's assume that we know.) Both employers sue. Are you suggesting that these employers claims should be evaluated differently? The employer who would sacrifice his convictions in order to avoid the risk of economic consequences is coerced by the risk burden he confronts -- but because he sells his convictions out so cheaply his religious liberty claim does not justify providing him an accommodation that causes harm to third parties. Is that your argument? And then what happens to the other employer who will drop the health plan even though he believes doing so may well impose significant costs on his business. Does his claim succeed? Or are you suggesting that because this employer will accept such burdens in order to remain true to his religious convictions, his claim should also be denied because the burden on his faith was not sufficient to force him to violate his conscience. I think I'm missing something here, but I'm not sure what it is. Alan 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 3:19 PM To: Law Religion issues for Law Academics Subject: Re: Two more Hobby Lobby posts Thanks for that extremely thoughtful response, Alan. I think you're onto something important: I imagine that even if the SP report is correct, and many employers will drop their health care plans in the coming years, there is a definite first mover phenomenon at work -- that is to say, the main reason any employer would be reluctant to drop its plan just now is precisely that there are too many uncertainties and it wishes to avoid any risks, and is therefore waiting to see what, e.g., its competitors will do. That is entirely understandable employer behavior. The question, however, is why the female employees of that employer should suffer the consequences if the employer opts not to take that chance just now, but opts instead to wait-and-see. If the mere chance of some marginal disadvantage in the relevant labor market -- a disadvantage, I should add, that may very well not result in any significant competitive disadvantage, assuming (as I think is probably fair) that the labor pool for arts supplies stores is fairly elastic -- is more important to the Greens than their alleged complicity with employees' use of contraception, then it's not obvious to me why the state should afford them an exemption that will redound to the significant detriment of their employees. On Sun, Jun 15, 2014 at 5:59 PM, Alan Brownstein aebrownst...@ucdavis.edumailto:aebrownst...@ucdavis.edu wrote: 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
RE: recommended Hobby Lobby posts
Dear Alan and Chip - Your conversation is (natch!) insightful and helpful. For what it's worth, it is not clear to me (putting aside things the Supreme Court may or may not have said or meant) that either the Establishment Clause or whatever theories of church-state relations and religious-freedom-under-law our Constitution reflects disallow accommodations that impose[] substantial costs on . . . the public. Why should we regard it as an establishment of religion for the government to decide - that is, for (a majority-ish of) us to decide that it is worth it to structure an otherwise generally applicable regulatory-and-spending regime in such a way that its operation does not impose avoidable burdens on religious exercise, even when the expense the community is real? (To ask this is different, it seems to me, than to ask about accommodations that take the form of lifting a burden from A and moving it, directly and particularly, to B. I had understood the Gedicks et al. objection to Hobby Lobby's RFRA claim to be asking about these.) I agree, certainly, that religion is different but it seems to me that this difference is reflected *both* through the rule against establishments (and I know we would disagree about precisely what constitutes an establishment and what does not) *and* through an admittedly not-uniform tradition (even if not through Free Exercise Clause doctrine) of accommodating religion, religious objections, and religious exercise when it's possible to do so. In our tradition, I think, religious freedom is not just a private benefit - something that is conferred on particular beneficiaries - but also a public good - something we are, as a political community, allowed and even encouraged to pursue, promote, and if necessary pay for. Do you disagree, or am I reading too much into Alan's mention of the public? 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.edumailto:rgarn...@nd.edu To download my scholarly papers, please visit my SSRN pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://mirrorofjustice.blogs.com/ Twitter: @RickGarnetthttps://twitter.com/RickGarnett From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Friday, February 21, 2014 1:22 AM To: Law Religion issues for Law Academics Subject: RE: recommended Hobby Lobby posts These are very helpful responses, Chip. Let me try to use them to identify and clarify where I think we agree and disagree. 1. I agree that Religion is different and the Establishment Clause is part of what makes it different. The fact that free speech doctrine requires government to allow the exercise of a right even when doing so imposes substantial costs on third parties or the public does not mean that religious accommodations can impose a similar magnitude of costs on third parties or the public without violating the Establishment Clause. I also agree that the Establishment Clause limit is hard to identify, but it is certainly there and operates as a constraint on accommodations. But my example wasn't intended to suggest that the magnitude of costs acceptable in free speech cases parallels the magnitude of permissible costs for Establishment Clause purposes. My point was that the way we measure costs should operate the same way for both free speech and Establishment Clause purposes. In both cases, harm should be evaluated by determining the cost of mitigation, not by evaluating the cost of unmitigated consequences. If a religious group was going to engage in an unpopular ritual -- an animal sacrifice, for example -- and the state wanted to prohibit it from doing so to avoid disorder, property damage etc. caused by people who wanted to stop the ritual from happening, the state's interest in a RFRA type case should be measured in the same way it would be measured in a free speech case -- by determining the cost of providing sufficient police to maintain order. Costs that are tolerated under the free speech clause may violate the Establishment Clause, but we ought to measure them the same way. 2. Here is where we disagree. I don't think the fact that the government is unwilling (or is too politically dysfunctional) to adopt a less restrictive alternative allows the state to satisfy strict scrutiny review by insisting that otherwise feasible less restrictive alternatives are not politically available. Consider my prior example about an unpopular speaker. Suppose the state asserts that it has a compelling state interest in avoiding the disorder that will result from the speaker's public speech. Assume further that a court
RE: recommended Hobby Lobby posts
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
RE: recommended Hobby Lobby posts
Marty raises multiple issues here. First: The operative language of RLPA was identical to RFRA. They inserted restrictions that limited the application of that language to cases that affected commerce, arose in programs receiving federal financial assistance, or involved individualized assessments of regulated activity. They moved a modifying clause from the end of what it modified to the beginning of what it modified. But on the section setting out exercise of religion, substantial burden, compelling interest, and least restrictive means, they changed nothing that could remotely have affected substance. Second: Employers could just drop health insurance, but I'm not sure anyone but Marty is persuaded that that's a viable option. Certainly there is no evidence in the record of either case showing that either employer could drop health insurance, pay the fines, give the employees a big enough raise that they could all bluy individual coverage on the exchanges, and everyone breaks even or comes out ahead. Nor is there any reason to think that an employer could do this without generating massive employee ill will and seriously damaging its competitive position in the market place. For starters, all the people who hate Barack Obama and anything he has ever touched or endorsed, and many of those who oppose the Affordable Care Act on more rational grounds, would be furious at being dumped into the exchanges. A very large minority of the company's employees would be angry, and a very large minority of the potential employment pool would view the employer as a much less desirable place to work. Many employees of all political views might prefer that their employer do the work of evaluating health plans and choosing a good one, sparing them the burden. And for decades, a job with full benefits has been the marker of first-tier employment; jobs without health insurance are distinctly inferior. That may eventually change, when political passions have cooled, when the exchanges are functioning smoothly, when their continuous existence seems assured. But we certainly aren't there yet. An employer following Marty's strategy would suffer serious damage in the employment market, and suffer that damage for its owners' religious exercise. As in Sherbert v. Verner, that economic damage is a burden on the underlying religious exercise. Third is the testimony supporting RLPA in 98 and 99. I'll put that in a separate post. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, February 19, 2014 10:33 PM To: Law Religion issues for Law Academics Subject: recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-c onstructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question- corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always lose under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, they are barred from owning any business with more than fifty employees. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. Even if the company had fewer than 50 employees, its plan would still have to include contraception. If any employer, with fewer or more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong
RE: recommended Hobby Lobby posts
I have not gone back to review all the RLPA testimony, but yes we did predict that large commercial businesses seeking religious exemptions from civil rights laws would generally lose. The context of that testimony was civil rights claims. And it was a prediction of what the courts would do in fact, not a judgment about what they should do. But I would probably be comfortable with most of the results we predicted. The kinds of civil rights claims RLPA's supporters wanted to preserve mostly did not arise in business situations. Religious discrimination by religious organizations setting their criteria for membership, as in CLS v. Martinez, is rarely a legitimate business interest. Sex and marital-status discrimination in the ordination of a celibate male clergy is not a business interest. The existing examples at the time were the landlord-tenant cases, all of which involved small landlords. People could envision issues with kosher butchers and Christian bookstores, and with the broad reach of some state civil rights laws. Some state laws prohibit discrimination on the basis of any lawful off-the-job activity. Think the church secretary moonlighting in an abortion clinic, or a strip club, or any other business that is lawful but disreputable in the view of some. Same-sex marriage was on the far horizon; I don't recall anyone thinking about wedding photographers and the like. I believed that as the business grows, it becomes less plausible to view it as a personal extension of the owner. Mrs. Smith with two duplexes may feel morally responsible for every unit, and she may be doing all the work of leasing and maintenance herself. A landlord with multiple apartment complexes is less likely to feel that moral responsibility, and less likely to persuade a court that he does. He certainly does not have to become personally involved with what he considers the immoral use of his property by particular tenants. And as the business grows, the government's interest grows. I did not envision at the time, and I don't know that anyone else did, a case like Hobby Lobby. Here the business is large, but it is closely held by devoutly religious and religiously unanimous owners. The government is demanding a decision that must be made at the level of senior management for the entire corporation; in 1998 and 99, people were thinking about issues posed by one customer somewhere, to be dealt with by a rank-and-file employee where it arose. And the owners and senior management understand the decision the government wants to be profoundly evil - to require that they cause their corporation to pay for, contract for, arrange for, and provide to their employees and present as normal the option of killing innocent human beings. That's not my view of emergency contraception and IUDs, but it is theirs. I would not want a decision in Hobby Lobby limited to those facts, and I'm not sure where I would draw the line. But no one in 1998 and 1999 was thinking about, or predicting judicial reaction to, a case like this. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, February 19, 2014 10:33 PM To: Law Religion issues for Law Academics Subject: recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-c onstructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question- corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always lose under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, they are barred from owning any business with more than fifty employees. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. Even if the company had fewer than 50 employees, its plan
Re: recommended Hobby Lobby posts
I'm a bit confused by Doug's explanation of why this case is different from the civil rights cases that he testified the state would (and usually should) win. I don't share Doug's view of how to characterize what the Greens are required to do here (see my many posts); but for now, let's assume he's right, and that this law would in effect coerce the Greens to do something their religion prohibits. OK, but that was true in the civil rights cases, too -- no one denied, even in *Piggy Park*, that the owners/landlords, etc., believed they were being coerced to cooperate in evil, in a way their religion prohibited. In other words, those cases -- the ones Doug thinks the state would and (usually) should win -- involved a much clearer case of a substantial burden on religious exercise. I had expected Doug to say instead that the difference in the cases was on the government interest side of the line. Is that not what's driving most people's instincts here -- that the state interest here is thought by many (albeit wrongly, in my view) to be less compelling than the interest in preventing discrimination? On Thu, Feb 20, 2014 at 10:30 AM, Douglas Laycock dlayc...@virginia.eduwrote: I have not gone back to review all the RLPA testimony, but yes we did predict that large commercial businesses seeking religious exemptions from civil rights laws would generally lose. The context of that testimony was civil rights claims. And it was a prediction of what the courts would do in fact, not a judgment about what they should do. But I would probably be comfortable with most of the results we predicted. The kinds of civil rights claims RLPA's supporters wanted to preserve mostly did not arise in business situations. Religious discrimination by religious organizations setting their criteria for membership, as in *CLS v. Martinez*, is rarely a legitimate business interest. Sex and marital-status discrimination in the ordination of a celibate male clergy is not a business interest. The existing examples at the time were the landlord-tenant cases, all of which involved small landlords. People could envision issues with kosher butchers and Christian bookstores, and with the broad reach of some state civil rights laws. Some state laws prohibit discrimination on the basis of any lawful off-the-job activity. Think the church secretary moonlighting in an abortion clinic, or a strip club, or any other business that is lawful but disreputable in the view of some. Same-sex marriage was on the far horizon; I don't recall anyone thinking about wedding photographers and the like. I believed that as the business grows, it becomes less plausible to view it as a personal extension of the owner. Mrs. Smith with two duplexes may feel morally responsible for every unit, and she may be doing all the work of leasing and maintenance herself. A landlord with multiple apartment complexes is less likely to feel that moral responsibility, and less likely to persuade a court that he does. He certainly does not have to become personally involved with what he considers the immoral use of his property by particular tenants. And as the business grows, the government's interest grows. I did not envision at the time, and I don't know that anyone else did, a case like *Hobby Lobby*. Here the business is large, but it is closely held by devoutly religious and religiously unanimous owners. The government is demanding a decision that must be made at the level of senior management for the entire corporation; in 1998 and 99, people were thinking about issues posed by one customer somewhere, to be dealt with by a rank-and-file employee where it arose. And the owners and senior management understand the decision the government wants to be profoundly evil - to require that they cause their corporation to pay for, contract for, arrange for, and provide to their employees and present as normal the option of killing innocent human beings. That's not my view of emergency contraception and IUDs, but it is theirs. I would not want a decision in *Hobby Lobby* limited to those facts, and I'm not sure where I would draw the line. But no one in 1998 and 1999 was thinking about, or predicting judicial reaction to, a case like this. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, February 19, 2014 10:33 PM *To:* Law Religion issues for Law Academics *Subject:* recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02
Re: recommended Hobby Lobby posts
Quick responses to these two points: 1. When I referred to differences between RLPA and RFRA, I was alluding to the amendment to RLPA at that time providing that This Act should be construed in favor of a broad protection of religious exercise, *to the maximum extent permitted* *by its terms* and the Constitution. IIRC, that amendment caused much consternation about how RLPA, much more than RFRA and the FEC, would lead to civil rights exemptions. 2. Many thousands of employers will in fact drop (or decline to offer in the first instance) an employee health plan--so it's not remotely unthinkable; it's expected to occur quite frequently (although predictions vary on the percentages). More to the point, *I *don't have to persuade you, nor does the government, that it is a viable option. The burden is *on the plaintiffs *to demonstrate that federal law imposes substantial pressure on them *not* to drop their plans -- and they haven't introduced or alleged any evidence at all to that effect, let alone alleged facts that would survive *Iqbal/Trombley*. Moreover, even if the plaintiffs had alleged facts to demonstrate that *some* employees would be upset if the plan were dropped, so what? There still wouldn't be proof (i) that federal law (as opposed to the Obama-hatred you invoke) would be the cause of that hatred; (ii) that a greater number of employees in the case of these employers wouldn't be *happier* with a combination of subsidized, full plans on the exchange and increased salaries; or (iii) most importantly, that any resulting employee resentment would impose *substantial pressure *on the companies to keep their plans, even if it meant including contraception coverage. On Thu, Feb 20, 2014 at 10:07 AM, Douglas Laycock dlayc...@virginia.eduwrote: Marty raises multiple issues here. *First*: The operative language of RLPA was identical to RFRA. They inserted restrictions that limited the application of that language to cases that affected commerce, arose in programs receiving federal financial assistance, or involved individualized assessments of regulated activity. They moved a modifying clause from the end of what it modified to the beginning of what it modified. But on the section setting out exercise of religion, substantial burden, compelling interest, and least restrictive means, they changed nothing that could remotely have affected substance. *Second*: Employers could just drop health insurance, but I'm not sure anyone but Marty is persuaded that that's a viable option. Certainly there is no evidence in the record of either case showing that either employer could drop health insurance, pay the fines, give the employees a big enough raise that they could all bluy individual coverage on the exchanges, and everyone breaks even or comes out ahead. Nor is there any reason to think that an employer could do this without generating massive employee ill will and seriously damaging its competitive position in the market place. For starters, all the people who hate Barack Obama and anything he has ever touched or endorsed, and many of those who oppose the Affordable Care Act on more rational grounds, would be furious at being dumped into the exchanges. A very large minority of the company's employees would be angry, and a very large minority of the potential employment pool would view the employer as a much less desirable place to work. Many employees of all political views might prefer that their employer do the work of evaluating health plans and choosing a good one, sparing them the burden. And for decades, a job with full benefits has been the marker of first-tier employment; jobs without health insurance are distinctly inferior. That may eventually change, when political passions have cooled, when the exchanges are functioning smoothly, when their continuous existence seems assured. But we certainly aren't there yet. An employer following Marty's strategy would suffer serious damage in the employment market, and suffer that damage for its owners' religious exercise. As in *Sherbert v. Verner*, that economic damage is a burden on the underlying religious exercise. *Third* is the testimony supporting RLPA in 98 and 99. I'll put that in a separate post. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, February 19, 2014 10:33 PM *To:* Law Religion issues for Law Academics *Subject:* recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium
Re: recommended Hobby Lobby posts
that in a separate post. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, February 19, 2014 10:33 PM *To:* Law Religion issues for Law Academics *Subject:* recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always *lose *under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. *Even if the company had fewer than 50 employees, its plan would still have to include contraception*. If *any* employer, with fewer *or *more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, then *they will have little choice but to drop their plans.* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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: recommended Hobby Lobby posts
of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, February 19, 2014 10:33 PM *To:* Law Religion issues for Law Academics *Subject:* recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always *lose *under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. *Even if the company had fewer than 50 employees, its plan would still have to include contraception*. If *any* employer, with fewer *or *more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, then *they will have little choice but to drop their plans.* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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: recommended Hobby Lobby posts
with by a rank-and-file employee where it arose. And the owners and senior management understand the decision the government wants to be profoundly evil – to require that they cause their corporation to pay for, contract for, arrange for, and provide to their employees and present as normal the option of killing innocent human beings. That’s not my view of emergency contraception and IUDs, but it is theirs. I would not want a decision in Hobby Lobby limited to those facts, and I’m not sure where I would draw the line. But no one in 1998 and 1999 was thinking about, or predicting judicial reaction to, a case like this. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, February 19, 2014 10:33 PM To: Law Religion issues for Law Academics Subject: recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always lose under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government’s view, they are barred from owning any business with more than fifty employees. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. Even if the company had fewer than 50 employees, its plan would still have to include contraception. If any employer, with fewer or more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, then they will have little choice but to drop their plans. Also, another small thing related to that sentence: The individual plaintiffs, at least in Hobby Lobby, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that payment is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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. ___ 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
Re: recommended Hobby Lobby posts
duplexes may feel morally responsible for every unit, and she may be doing all the work of leasing and maintenance herself. A landlord with multiple apartment complexes is less likely to feel that moral responsibility, and less likely to persuade a court that he does. He certainly does not have to become personally involved with what he considers the immoral use of his property by particular tenants. And as the business grows, the government's interest grows. I did not envision at the time, and I don't know that anyone else did, a case like *Hobby Lobby*. Here the business is large, but it is closely held by devoutly religious and religiously unanimous owners. The government is demanding a decision that must be made at the level of senior management for the entire corporation; in 1998 and 99, people were thinking about issues posed by one customer somewhere, to be dealt with by a rank-and-file employee where it arose. And the owners and senior management understand the decision the government wants to be profoundly evil - to require that they cause their corporation to pay for, contract for, arrange for, and provide to their employees and present as normal the option of killing innocent human beings. That's not my view of emergency contraception and IUDs, but it is theirs. I would not want a decision in *Hobby Lobby* limited to those facts, and I'm not sure where I would draw the line. But no one in 1998 and 1999 was thinking about, or predicting judicial reaction to, a case like this. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Wednesday, February 19, 2014 10:33 PM *To:* Law Religion issues for Law Academics *Subject:* recommended Hobby Lobby posts I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always *lose *under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. *Even if the company had fewer than 50 employees, its plan would still have to include contraception*. If *any* employer, with fewer *or *more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, then *they will have little choice but to drop their plans.* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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
RE: recommended Hobby Lobby posts
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.
Re: recommended Hobby Lobby posts
Alan: I'll let Chip speak for himself, but I don't think the relevant distinction is so much between employment cases and all others as it is between cases *in the commercial sector *(especially claims brought by for-profit enterprises) and all others. In *Piggie Park*, for example, the harm was borne by customers, not employees, but the result was the same. On Thu, Feb 20, 2014 at 4:26 PM, Alan Brownstein aebrownst...@ucdavis.eduwrote: 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. ___ 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: 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.eduwrote: 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
RE: recommended Hobby Lobby posts
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.edumailto: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
Re: recommended Hobby Lobby posts
I agree with Chip about the political realities of a public option. Even if that option were politically viable, I don’t see how the public option can be considered a less restrictive alternative in cases dealing with exemptions from regulations. Employers have previously brought free exercise challenges to things like federal minimum wage laws and equal pay laws. Those challenges have been rejected. But if an employer has a religious objection to paying the minimum wage, the government could step in and pay a salary supplement. If an employer has a religious objection to paying women as much as men, the government could step in and make up the difference directly. United States v. Lee would have also come out differently – the government could have chipped in the missing social security payments there, too. And so on and so on: virtually every regulation governing health, safety, wage, working conditions – any regulation that requires a private party to do something – could be rewritten so that the government performs the action itself. If the “public option” is considered to be a less restrictive alternative, then we’re in a world of state-run everything. On Feb 20, 2014, at 7:01 PM, Scarberry, Mark mark.scarbe...@pepperdine.edumailto: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.edumailto: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
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.) 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
RE: recommended Hobby Lobby posts
to be a regulation of employer-employee relations, like the employment discrimination provisions of Title VII or various labor law statutes. I think the Affordable Care Act is a health insurance law, not an employer-employee relations law. Both the goal and the operational design of the Affordable Care Act are directed toward providing affordable health insurance to all Americans whether they are employed or not. Employers are used as a conduit to achieve that health insurance objective for some Americans-- but that is incidental to the ultimate purpose of the legislation which is aimed at all Americans, not just employees. If the contraceptive mandate is viewed as a part of the massive government involvement in arranging for the provision of affordable health care, at least some of which -- through the expansion of Medicaid -- involves the government providing health care coverage directly, it doesn't seem particularly assymetrical to me to suggest that the government itself should shoulder the burden of providing contraceptive insurance coverage to the employees of religious employers. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] 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.edumailto: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
recommended Hobby Lobby posts
I have some further posts up on Balkinization. More importantly, both Chip Lupu/Bob Tuttle and Doug Laycock have excellent posts up as part of the SCOTUSblog symposium, which I commend to all of you: Chip/Bob: http://www.scotusblog.com/2014/02/symposium-religious-questions-and-saving-constructions/ Doug: http://www.scotusblog.com/2014/02/symposium-congress-answered-this-question-corporations-are-covered/ I have questions/reactions to a couple of things in Doug's post: First, Doug argues that many or all members of Congress during the RLPA debate assumed that the bill, which at the time was similar (but not identical) to RFRA, would at least allow for-profit corporations or their directors/owners to bring claims. But as I recall, Doug and others also reassured members of Congress, in public testimony, that large for-profit companies would always or almost always *lose *under RLPA. Doug, do you think this is one of the rare or exceptional cases where the large for-profit plaintiffs should win, and, if so, why is this the outlier? Second, Doug writes that If these plaintiffs will not pay for what they believe to be such an extraordinary wrong, then in the government's view, *they are barred from owning any business with more than fifty employees*. But it is simply not true that the consequence of excluding contraception from the plan would be that the plaintiffs are barred from owning any business with more than fifty employees. *Even if the company had fewer than 50 employees, its plan would still have to include contraception*. If *any*employer, with fewer *or *more than fifty employees, does not wish to include all required services in an employee benefit plan, it has two choices: either be subject to prohibitive payments (in effect fines) or get rid of their employee plan (in which case most of their employees would be eligible for a subsidized plan on an exchange). A more accurate way of stating the law would be: If these plaintiffs, or any other employers, do not include coverage in their companies' plans for what they believe to be such an extraordinary wrong, then *they will have little choice but to drop their plans.* Also, another small thing related to that sentence: The individual plaintiffs, at least in *Hobby Lobby*, would not pay for contraception -- indeed, they are not even shareholders -- and their brief makes it clear, I think, that *payment *is not the gravamen of their complaint. See http://balkin.blogspot.com/2014/02/hobby-lobby-part-viii-hobby-lobbys.html ___ 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 posts
issues for Law Academics *Subject:* RE: Hobby Lobby posts I also thought that Marty’s argument that there is actually no employer mandate for RFRA purposes was extremely thoughtful and interesting. I thought about this analogy while considering his analysis. Suppose the federal government decides to return to a system of conscription that includes non-military, national service. All draftees are told up front that they can either serve in the military or in a wide variety of alternative service jobs. There is no specific conscientious objector exemption provided by the conscription statute. Would a religious pacifist have a claim under RFRA? As long as there were alternative service jobs available that did not violate the draftees religious beliefs, and the alternative jobs were not more demanding and dangerous than military service, I take it Marty’s analysis would suggest that no viable RFRA claim would exist. A draftee might argue that serving the government in any capacity under a national service plan would violate his religious beliefs, but I think that position was never accepted in conscientious objector cases and presumably it would not be accepted for this new system of national service. Of course, as Marty recognizes, there may be questions as to the costs employers actually incur if they choose to pay the tax alternative (e.g. the employer being placed at a competitive disadvantage) just as in my analogy there may be questions about the burdens imposed on individuals choosing non-military service. But those questions do not undercut the foundation of his argument. Alan Brownstein *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Volokh, Eugene *Sent:* Monday, December 16, 2013 12:03 PM *To:* Law Religion issues for Law Academics *Subject:* RE: Hobby Lobby posts I much appreciate Marty’s kind words about my posts, and I’m very interested in his posts. The argument that there’s actually no employer mandate for RFRA purposes (the Part III post) strikes me as especially interesting, though I’m somewhat skeptical about it. Marty, could you post an excerpt of that post on this list? I’d love to hear what others have to say about it. Thanks, Eugene *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu] *On Behalf Of *Marty Lederman *Sent:* Monday, December 16, 2013 10:53 AM *To:* Law Religion issues for Law Academics *Subject:* Hobby Lobby posts 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: Hobby Lobby posts
With respect to the first issue discussed by Eugene and Marty, here are the average per-policy employer contributions in the United States reported by the Kaiser Family Foundation: Family policy - $11,237 Employee plus one policy - $7,797 Single employee policy - $4,266 http://kff.org/state-category/health-costs-budgets/employer-based-health-premiums/ Like Alan and Eugene, I find Marty's there is no mandate argument to be extremely interesting. In fact, it seems like it has the potential to render almost everything the courts, the commentators, and the parties have said about the case to date to be moot. That seems like a remarkable development at this stage of the debate (and potentially embarrassing to those of us who have contributed to the massive spilling of ink over the mandate), but I'm having a hard time escaping the simple logic of Marty's argument. - Jim On Tue, Dec 17, 2013 at 2:16 PM, Marty Lederman lederman.ma...@gmail.comwrote: Thanks, Eugene, for the close read and detailed reactions. 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 terms of the cost-savings realized by virtue of the exchanges themselves as well as the government's premium tax credits and cost-sharing reductions. To be sure, some of their more well-compensated employees *might* have paid less in premiums for the HL plan than they would to purchase a plan on the exchange (*maybe*-- again, there's no allegation or evidence of that here). But to make up *that* hypothetical shortfall, and attract those employees, HL need only use some of its enormous cost savings to sweeten their salaries. (This is presumably what the many large employers who do not provide plans will do.) For all these reasons, it is difficult to imagine HL or CW --or, more to the point, the average large employer -- being financially *worse off* if it pays the assessment. (And again, there's no allegation of facts that would alter that conclusion here, in any event.) 2. As for my secondary argument -- the one derives from *Lee *and that does not depend on evaluation of financial burdens -- it has nothing in common with a fine for gas stations not staying open seven days a week. Instead, the logic is something like this: i. Say Congress had simply decided that *all *employers, or all large employers, anyway, had to pay a tax of $2000 per employee to subsidize a new government benefit, namely, comprehensive health insurance to be purchased on a government-run exchange, with government subsidies offered to those who can't afford to buy the plans on the exchange themselves. This tax law would allow employers to provide their own insurance plans to their employees, too -- just as employers can offer their employees pension benefits in addition to social security -- but that would not affect their obligation to pay the $2000. I think we'd all agree that this would be constitutional, per *Lee* (and thus satisfy RFRA), even as applied to someone whose religion prohibited them from paying the $2000. And the case would be even clearer as to an employer -- such as those here -- who do not have such a religious obligation. So, if *all* Congress had done was to assess the tax on all large employers, there'd be no viable RFRA claim. ii. OK, but now Congress says the following: You know what? If you, Employer X, wish to be even *more *generous, and you provide the new social benefit to your employees yourself -- all of it, not 90% of it -- then we will accept that as an *alternative* way of you shouldering your fair share of this new social benefit. You can do one or the other -- *either* pay us the $2000 per employee, which we will then use to help subsidize the new government-provided benefit (an option that, standing alone, does not require a RFRA exemption), *or *provide the benefit to your employees, thereby saving us that expense. Is it really possible that the addition of this second alternative -- *increasing *the employer's options -- turns a baseless RFRA claim into a successful one? I'm not sure I can think of a plausible analogy with your gasoline example. It would have to be something like this: Congress decides that everyone should have access to
Hobby Lobby posts
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.
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: Hobby Lobby posts
I much appreciate Marty's kind words about my posts, and I'm very interested in his posts. The argument that there's actually no employer mandate for RFRA purposes (the Part III post) strikes me as especially interesting, though I'm somewhat skeptical about it. Marty, could you post an excerpt of that post on this list? I'd love to hear what others have to say about it. Thanks, Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, December 16, 2013 10:53 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby posts 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.docxhttp://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.
RE: Hobby Lobby posts
I also thought that Marty's argument that there is actually no employer mandate for RFRA purposes was extremely thoughtful and interesting. I thought about this analogy while considering his analysis. Suppose the federal government decides to return to a system of conscription that includes non-military, national service. All draftees are told up front that they can either serve in the military or in a wide variety of alternative service jobs. There is no specific conscientious objector exemption provided by the conscription statute. Would a religious pacifist have a claim under RFRA? As long as there were alternative service jobs available that did not violate the draftees religious beliefs, and the alternative jobs were not more demanding and dangerous than military service, I take it Marty's analysis would suggest that no viable RFRA claim would exist. A draftee might argue that serving the government in any capacity under a national service plan would violate his religious beliefs, but I think that position was never accepted in conscientious objector cases and presumably it would not be accepted for this new system of national service. Of course, as Marty recognizes, there may be questions as to the costs employers actually incur if they choose to pay the tax alternative (e.g. the employer being placed at a competitive disadvantage) just as in my analogy there may be questions about the burdens imposed on individuals choosing non-military service. But those questions do not undercut the foundation of his argument. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, December 16, 2013 12:03 PM To: Law Religion issues for Law Academics Subject: RE: Hobby Lobby posts I much appreciate Marty's kind words about my posts, and I'm very interested in his posts. The argument that there's actually no employer mandate for RFRA purposes (the Part III post) strikes me as especially interesting, though I'm somewhat skeptical about it. Marty, could you post an excerpt of that post on this list? I'd love to hear what others have to say about it. Thanks, Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, December 16, 2013 10:53 AM To: Law Religion issues for Law Academics Subject: Hobby Lobby posts 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.docxhttp://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.
