I’ve changed my mind again. The regulation will be upheld because it imposes no burden at all on religious freedom. I’m not sure why I didn’t think of it that way before, but it’s just too remote to plausibly “burden” anyone.
Any other result would pretty much turn all existing federal legislation on its ear. “My church ceiling must be eight cubits high, because the Bible says so. This federal employee safety code says all ceilings must be higher than that!”
Congress can provide guidance for the courts in construing its own acts. What it can’t do is bind future Congresses. So it can say, “unless we say otherwise, future enactments don’t override this one” (the default analysis being that later enactments supersede existing ones in the event of a conflict.) It can’t say, “no matter what, no future enactment overrides this one.”
I think you’re confusing the steps of the analysis. Requiring someone to do something that violates their religious scruples clearly places a “burden” on their religious freedom. These people draw the line at paying for insurance policies that cover certain drugs. Maybe you would draw the line at paying for the drug; maybe I would draw the line at using it myself. None of that matters for the purposes of the burden on the objector. “It is not for us to say that the line he drew was an unreasonable one.” (Thomas v. Review Board; which presents a similar “remote” burden issue and, I think, got that part right).
Your example of the ceiling height isn’t one of burden, it’s one of compelling interest. For example, in Lee (the social security case), everyone agreed that paying the taxes was a substantial burden on his religious freedom, the queston was whether the government interest in uniform nationwide mandatory contribution system overrode that burden; and it concluded that it did. Similarly, the government interest in employee safety might well override the religious burden of not constructing the church in a certain manner (and maybe it doesn’t, we’d need more facts).
But the argument isn’t that there is no burden. I don’t actually know how you can conclude that the regulation doesn’t place a burden on their religious freedoms (unless you take the ‘there are no religious rights in a secular marketplace’ attitude, but that also means I can require my Sikh employees to shave and my Jewish employees to work Friday nights). Maybe the compelling government and the danger of an exemption is sufficent to uphold the regulation (I’m not convinced, but I could be).
Thomas v. Review Board wasn’t about remoteness. It was about courts deferring to individuals’ own analyses regarding their beliefs. The only remoteness analysis was whether Thomas’ previous *job *was sufficiently remote from the weapons building he objected to.
To the extent that I (and most people) think religious objections to contraception are dumb, Thomas controls. I am not entitled to substitute my judgment for Hobby Lobby’s. However, I am entitled (or more accurately, the court is entitled) to say there is no distinguishable burden placed on Hobby Lobby. They are not being forced to pay, directly or indirectly, for contraception, which is the “burden” their claim is premised on. They are being forced to pay for health insurance which may ultimately be used to cover contraception. Their general liability and workers’ compensation policies could conceivably pay for contraception, too - not to mention the fact that their existing health insurance policies already pay for contraception in various forms, and would even pay for abortifacients in certain circumstances.
I guess I’m not getting what you mean by “distinguishable burden.” It seems to me that you’re saying that have to draw the line at “pay, directly or indirectly, for contraception” but that because they don’t object (or, at least, aren’t objecting) to other forms of insurance that cover other forms of contraception and that might cover abortifacients, that there is no burden on them to be required to pay for this insurance that covers these drugs that they do object to (although, why would workers comp cover emergency contraception?). I’m not understanding how that isn’t really just Thomas. Remember, the Indiana Court wasn’t saying that tank turrents was too attentuated from pacificism; rather, they were saying that Thomas’ decision to draw the line at turrets whereas he was willing to make steel, some of which would be used in tank turrents, suggested that it wasn’t really a religious burden. The HL folks strike me as being in the place that the Indiana Supreme Court wanted Thomas to be: no using, no paying, and no paying for this thing that pays for it. But there’s always one more line; *Thomas *says (to me) that it’s up to the objector how attenuated is to attenuated for the purpose of the belief and we just don’t get into it.
Once we agree that the religious objector gets to determine the belief, making them violate that belief has to constitute a burden, doesn’t it? This isn’t like the Jewish deli owners (case name escapes me) who objected to Sunday closing laws on the basis that their religion also required them to be closed on Saturday, so they were losing a day of revenue. That’s too indirect to count, I get that.
I think I’m missing something in your argument, since you seem to accept all the same premises as I do.
Sure. A slip-and-fall can cause damage to the brain or other tissue that prevents the body from regulating hormones normally, resulting in the use of birth control for therapeutic purposes. It’s not common (I’ve seen one such work injury in six years of looking), but I would be very surprised if it hasn’t happened in one of Hobby Lobby’s 500+ stores. Alternatively, there are any number of injuries which can result severe health risks from future pregnancy and for which either hormonal or more permanent forms of birth control are indicated. Or an existing pregnancy might need to be terminated due to trauma. Really, the possibilities are endless (and I hadn’t even considered the rapey customer thing.)
In the end, I don’t care – I don’t see any magical aspect to contraception that requires the employer’s health plan to pay for it. I grant RNATB’s theory that perhaps a work-related injury might require it, and under those circumstances I have no problem with the law mandating it. But I draw a distinction between compensating someone for a work-related injury and simply providing an employee benefit. The former can be a requirement; the latter an option, at least in my view.
The former is a requirement because legislatures have mandated it. There is no inherent right to compensation or medical care for industrial injuries. Now the latter is a requirement, too. What’s your distinction?
Pre- and post-RFRA. The mandate for the latter was enacted post-RFRA and thus requires strict scrutiny of the government’s claims of compelling interest and their proposed methods of achieving it.
Ok. Accepting that arguendo, you’ve answered your own question: workers’ compensation schemes derive from state law; the mandate in question comes from federal law and is subject to the strictures of the RFRA.
Justice Sotomayor issued a stay enjoining the federal government from enforcing the contraception mandate requirements imposed by the Patient Protection and Affordable Care Act against organizations.
The thing with that is the portion they are staying is the exemption portion. Seems some religious employers are so against contraception that they are unwilling to document their refusal because that would allow the employees to go directly to the insurance companies.