Re: Hobby Lobby posts

[James Oleske]

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 wrote:

> 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:
>

Re: Hobby Lobby posts

[Marty Lederman]

/ strict scrutiny framework, and I also
> wonder how one can figure out what is a permissible tax and what is an
> impermissible one.
>
>
>
> In any case, I’d love to hear more about this from Marty
> or from others.
>
>
>
> Eugene
>
>
>
>
>
> *From:* religionlaw-boun...@lists.ucla.edu [mailto:
> religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Alan Brownstein
> *Sent:* Monday, December 16, 2013 2:15 PM
>
> *To:* Law & Religion 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.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 Religionl

RE: Hobby Lobby posts

[Volokh, Eugene]

I appreciate Alan's argument, though I'm not sure the analogy 
quite works, given that there's likely no RFRA entitlement to a draft exemption 
in any event, see Gillette.

1.  But I was wondering if I could probe a little further on 
Marty's factual argument.  As I understand it, the main claim is that there's 
no real burden on employers because they could comply with the law, not violate 
their religious beliefs, and not even lose employees, by simply not providing 
any insurance, paying the $2000/employee/year tax, and paying the cost of 
insurance minus the tax as a higher salary to their employees.  If this is 
right, then I agree that, under Tony & Susan Alamo Foundation, the employers 
won't have been substantially burdened, assuming (as I'm glad to do for 
purposes of the discussion) the employers don't feel an actual religious 
obligation to provide insurance, rather than just providing money that 
employees could use to buy insurance.  (Marty, am I understanding that part of 
the claim correctly?)

I'm curious, though, whether this is so as a factual matter.  
To use Marty's number, say that an employer has to pay $4000/year per single 
employee in health insurance.  If it pays a (non-tax-exempt) $2000 tax, that's 
the rough equivalent, at a 35% income tax rate, of a $3000 tax.  This means 
that the employer has a surplus of $1000, which it can pay to employees as 
extra salary.  But Hobby Lobby's competitors would be giving employees health 
insurance, so to maintain its competitiveness for employees, Hobby Lobby would 
have to pay them the cost of the health insurance.  Am I mistaken in thinking 
that most insurance for most employees would cost much more than $1000/year?  
If so, wouldn't this mean that, despite all this financial work, the net effect 
will be that, to comply with law, comply with its religious beliefs, and still 
be competitive for employees, Hobby Lobby would have to pay thousands of 
dollars per year extra?  That strikes me as a pretty substantial burden, 
notwithstanding that it's imposed through the tax system.

2.  Marty, though, also has an alternative argument.  "Even 
putting aside the particular question of a 'substantial burden' on plaintiffs' 
religious exercise, the fact that there is no federal 'mandate,' or legal duty, 
for the plaintiffs to offer insurance plans of a particular sort undermines the 
plaintiffs' RFRA claims in a more fundamental respect:  It explains why those 
claims run headlong into the Court's unanimous 1982 opinion in United States v. 
Lee, concerning a religious liberty challenge to a tax for another universal 
federal entitlement program, Social Security."

Is that right?  I agree that Lee bars claims of religious 
exemptions from tax obligations.  But does it also bar claims of religious 
exemptions when the government imposes a tax on an action (or inaction), where 
the action (or inaction) is seen as religiously compelled?

Say, for instance, that the government enacts a law requiring 
all service stations to be open seven days a week, and fining those who don't 
comply $2000/year.  A station is owned and run by an Orthodox Jew or 
Seventh-Day Adventist, who feels a religious obligation to close the station on 
the Sabbath.  I assume this would be seen as a substantial burden on religious 
practice, and one that quite likely can't pass strict scrutiny.  Now the 
government says "we will impose a $2000 tax on all those who don't open their 
service stations seven days a week."  Is it really the case that Lee would 
preclude a challenge?

What if the government provides, "any person who is dismissed 
employment for failing to comply with a work rule will have to pay a tax 20% of 
the unemployment compensation the person would otherwise have received" -- 
would a state RFRA challenge be precluded given Lee?  Cf. Hobbie, n.8 (noting 
that Florida didn't completely deny unemployment compensation to those 
"discharge[d] due to misconduct connected with work," but only denied it in 
part).

3.  Finally, part of the argument, I take it, is that certain 
taxes aimed at compensating for the costs imposed by a person's religious 
activity are permissible.  In principle, I think that this general idea has 
much to recommend it.  But I wonder just how it would fit within the 
substantial burden / strict scrutiny framework, and I also wonder how one can 
figure out what is a permissible tax and what is an impermissible one.

In any case, I'd love to hear more about this from Marty or 
from others.

Eugene


From: religionlaw-boun...@lists.ucla.edu 
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ala

RE: Hobby Lobby posts

[Alan Brownstein]

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.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.docx<http://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 
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Anyone can subscribe to the list and read messages that are posted; people can 
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RE: Hobby Lobby posts

[Volokh, Eugene]

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.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 
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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

[Micah Schwartzman]

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 
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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.