Response to Marty on the Mandate

I guess we'll now turn to evaluating the White House "compromise" on the mandate, but let me add a little to what others have said in comments responding to Marty Lederman's thoughtful inquiry why the mandate (at least pre-compromise) imposes a substantial burden under RFRA.  I start with the Dana Dillon exchange that Marty mentions.  As one participant there notes, insurance coverage of contraception has symbolic meaning:  "[T]he refusal to provide contraceptive coverage is one of the (few!) ways in which the Catholic church as a whole can be said to be 'upholding' the Church’s teaching," given that it is not widely followed by the laity or widely promoted in homilies.  This to me makes it easy to understand seeing the mandate as a serious burden.  For the Church to be forced to give up this means of upholding the teaching would have a significant effect on a doctrine already under siege, and on the role of that doctrine in tying to the Church organizations whose affiliation with it is otherwise fairly loose.  As others remarked in the comments, saying "we're doing this but we're against it" is insufficient because any claimant subject to a law has that option.  (And needless to say, the fact that the teaching is currently followed--even articulated--very imperfectly in the Church is not a reason to find no burden; the institutional leaders should be able to decide when to man the barricades.) 

We defer, within a pretty wide berth, to a religious claimant's argument that a government mandate forces her to violate her religious beliefs.  (And we unquestionably have a mandate here, one very difficult to avoid, even compared to the most far-reaching state version.)  U.S. v. Lee found a burden on the Amish in a similar context, as Kevin Walsh remarked in the comments.  And Thomas v. Review Bd., the case about the Jehovah's Witness making parts ultimately used in tanks, likewise deferred to a claimant's understanding of the degree of connection that constitutes cooperation.  This question cannot be reduced to microeconomic analysis (under which many, many things could be said to have some effect--or not enough--because money is fungible).  It can't even be reduced entirely to moral-theology hypos about cooperation with evil.  The importance of symbolic elements justifies substantial deference to the claimant's judgment on when a mandate like this--again, unquestionably a mandate--conflicts with its claimant's beliefs.

Finally, I don't think that the "intervening private choice" analysis from the voucher ruling applies here, as Marty suggests, to say there's no burden. The taxpayer's connection to the ultimate voucher expenditure is far less significant than the employer's connection to employees' decisions to use coverage.  First, there are millions more taxpayers in a state than there are employees for any religious employer.  Second, unlike the taxpayer, the employer has to include something in an actual policy of its own, has to respond to inquiries by saying that it does cover contraception--even unwillingly--and so forth.