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 S&P 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 mailto: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.
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 S&P 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 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 S&P Report might bear on it. > > Many of you will recognize much of these as derived from our discussions > here, for which I'm very grateful. > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http
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 S&P Report might bear on it. Many of you will recognize much of these as derived from our discussions here, for which I'm very grateful. ___ 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.
