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Hobby Lobby and the Establishment Clause: Amicus Brief
Guest Blogger
Richard Schragger, Micah Schwartzman,
and Nelson Tebbe
The New York Times has an editorial
endorsing the position that we and a number of other church-state scholars have
taken in an amicus brief recently filed in Sebelius
v. Hobby Lobby, and that we have blogged and written
about previously (here,
here,
and here).
In the brief,
which was led by Fred Gedicks, we argue that a religious exemption that permits
for-profit employers to shift significant costs of observing their
religion to employees who do not share the same religious views violates the
Establishment Clause.
As the Times editors note: "Oddly,
the Justice Department has relegated to a footnote what may be the strongest
single argument against allowing the two companies to deny their workers
contraceptive coverage that they would otherwise be entitled to under the
health care law. That would be the Constitution’s establishment clause
enforcing the separation of church and state and barring government from
favoring one religion over another or nonbelievers. But that is exactly what
would happen if the restoration act were to be read as a congressional order
requiring federal courts to grant private for-profit employers an exemption
that would effectively allow them to impose their beliefs on employees to deny
them a valuable government benefit."
As we have argued, the no-cost-shifting principle is a basic tenet of
non-establishment in the for-profit workplace and it is reflected in an
unbroken line of Supreme Court cases. If the government is able to shift the
costs of otherwise generally applicable neutral burdens by granting selective
accommodations, a defined class of citizens will be paying for the religious
exercise of others.
Richard C. Schragger is Perre Bowen Professor Barron F. Black Research
Professor of Law at the University of Virginia School of Law. You can
reach him by e-mail at schragger at virginia.edu
Micah J. Schwartzman is
Edward F. Howrey Professor of Law at
the University of Virginia School of Law. You can reach him by e-mail at schwartzman at virginia.edu
Nelson Tebbe is Professor of Law at
Brooklyn Law School. You can reach him by e-mail at nelson.tebbe at brooklaw.edu