"Religious" as a line drawing device

Andrew Koppelman provides a response to a criticism of use of "religion" as an accommodations classification (see, e.g., her last comment here -- one that is rather weak and uses "impose" to cover way too much ground to be helpful*). The discussion raises some interesting points, such as this:

Religion is an adequate proxy for multiple goods, some of which are not ones that can directly be aimed at. “Religion” denotes salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and much else besides. Each of those goods is, at least, more likely to be salient in religious than in nonreligious contexts. The fact that there is so much contestation among religions as to which of these goods is most salient is itself a reason for the state to remain vague about this question. Because “religion”—or, at least, that subset of it that is likely to come before American courts—captures multiple goods, any substitute that aims at any one of them will be underinclusive.

The Supreme Court is loathe to define "religion" much though a few times there is a nod to there being some limits.  Sometimes, I have seen people be upset that "religion" get special attention, but so it does -- see the First Amendment. Other things can get special protection too, putting aside related things like "conscience" that is particularly "religious-like" though can be defended in other ways as well.  Still, "religion" is special, both for (free exercise) and against (establishment) in our system.  The extended quote above helps to show the word has a range of connotations, which range beyond "fantasy sky god" or the like. 

It's tricky and debating lines is fine.  Helps, however, if we don't use the level of naivety that comes off at the end of his commentary:

The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. This will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.

If filling out forms or corporations allowing employees to choose their plans akin to how they choose to use their salary in general will be "a heavy burden" (it really isn't; his assumption there is far from clear), a consistent application of this rule will not merely result in "administrative headaches." This crap from a liberal who supports the mandate is tiresome.  For profit corporations with employees of various faiths are not in the same position as non-profits often likely to be smaller and/or more fellow travelers. The two situations are different. Stop promoting ignorance.  Over and over again the other side does. Et tu, Brutus? 

So what could have been a disaster for women’s equality suddenly became a victory. Justice Alito noted in his majority opinion that the burden of the required accommodation on the women involved “would be precisely zero.” They will get the same free contraception that the challenged rule would have provided. Religious objections such as Hobby Lobby’s will be accommodated if and only if that continues to be the case.

The fact Alito says something doesn't make it true.  Even without taking into consideration some other Administration might do things differently, at best resulting in drawn out litigation or the like to put a stop to unwarranted burdens, the accommodation makes things harder. Personal example. I didn't know for some time that the health insurance provider I chose (nearby office / constantly saw ads for it) was Catholic based and does not cover various things. It has no direct concern for me but doubt I'm alone not looking at that too closely.  If I suddenly needed coverage, there would be lag time as I obtained another option -- if I had the wherewithal to do that.  The mandate in place in part is an incentive. 

Under those circumstances, religious accommodation, even of their peculiar beliefs, does not seem too much to ask.

So, even where there is a for profit corporation given special privileges in part in return of equal access and being separate from the personal individuals involved, there is no "substantial burden" (various people spelled out that test would not be met here) and because we are supposed to trust Alito (or rest on Kennedy, who is supportive on birth control, but who know about something else ... of course, nearly every case will rely on at most appellate judges of a mixed variety) that "precisely zero" burden is at issue here.  Koppelman wouldn't believe him there in various cases if police conduct was at stake, I gather.  Yes, the opinion could have been worse.  Making it out as a big win the other way is silly. I have covered this ground a lot here. But, ignorance is wickedly persistent.

A more minor disagreement. The article earlier on discussed a case where the Supreme Court decided 6-3 that it did not violate "free exercise" to open a public road in a way that interfered with the exercise of the religion of certain Native Americans.  The article notes:

Nonetheless, the Court, evidently persuaded that exemptions had to be based on conscience, held that there was no constitutionally cognizable burden, because the logging road had “no tendency to coerce individuals into acting contrary to their religious beliefs.” This result was quickly reversed by Congress, which evidently was not in the grip of this particular theory.

I think this discussion is somewhat misleading since the exemption involved the internal control of government property. In that context, every hindering of religious exercise (which surely doesn't just include conscience and/or belief in God but also things like rituals) is not the test when determining if the "prohibiting" of "free exercise" was violated. Meanwhile, O'Connor (who wrote the opinion) relied on compelling state interest, not merely that "coercion" was involved, when concurring in the Smith (peyote) case.  She realized more was involved.

Anyway, this is a tricky area, with a high volume of "wait a minute" fodder.

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* How much does many a religion "impose" on others exactly? What does that word mean in this context? The reply answered a question regarding an employer imposing on an employee by denying certain types of insurance coverage. My favored line drawing here in part arises out of this being in a "public" context where restrictions are more appropriate.  But, if all religions "impose," what are we talking about?  Impose on believers who agree to join? On unwanted observers to even things like wearing religious garb? Pretty unhelpful word choice.