Accommodation is not establishment: Response to Michael Perry et al.

As Michael Perry mentioned, a group of church-state scholars -- which includes, obviously, many friends and colleagues of MOJ -- filed an amicus brief in the Hobby Lobby case, arguing that "permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it."  I continue to think that this brief, which takes the position that a RFRA-mandated accommodation does not violate the Establishment Clause, has the better of the argument.

One difficulty I have with this "accommodation as establishment" argument is that, in my view, the requested (that is, the RFRA-required) accommodation does not actually shift or impose any costs to third-party non-adherents.  As we all tell our students all the time, premises about baselines do a lot of the work in many legal arguments and here, what Michael and his colleagues are framing as a "cost" or "burden" is really the loss of an employer-provided benefit that, under RFRA, is being illegally compelled.  If the employees of Hobby Lobby are being burdened by not receiving from their employer no-cost-sharing contraceptives, it is because the government did not choose a lawful means of providing those no-cost-sharing contraceptives, and not because the employees are being burdened with the "cost" of accommodating Hobby Lobby's religious exercise.

Of course, Marc DeGirolami has made the point better (here) than I just did, and I do not believe that the brief to which Michael linked can withstand the force of Marc's argument.