“We respect the Church’s objections to the workers’ compensation system and its remarkable devotion to its religious beliefs in every .aspect of life. Where such beliefs clash with important state interests in the welfare of others, however, accommodation is not constitutionally mandated.”
How later courts described this case
- “We respect the Church’s objections to the workers’ compensation system and its remarkable devotion to its religious beliefs in every .aspect of life. Where such beliefs clash with important state interests in the welfare of others, however, accommodation is not constitutionally mandated.”
- applying Lee and upholding state requirement of mandatory participation in worker’s compensation program
- “We respect the Church’s objections to the workers’ compensation system and its remarkable devotion to 13 (...continued) debtor’s avoidable transfers in bankruptcy proceeding
- "[T]he Supreme Court now appears to have confined the applicability of those words to the rather limited field of unemployment compensation. . . ."
Written by the judges who cited it.
The opinion
BOGGS, Circuit Judge,
concurring.
I write separately because I do not believe that every scheme that taxes religious institutions along with other institutions in our society will necessarily pass muster under the free exercise clause. The court rests its opinion predominantly on the social security case of United States v. Lee, 455 U.S. 252 , 102 S.Ct. 1051 , 71 L.Ed.2d 127 (1982). Because of the highly diverse and mobile nature of our society, with an individual frequently working for many employers during a working lifetime, and because of the need to maintain actuarial soundness over periods of half a century or more, the social security system represents one of the most compelling justifications for a legislative decision to adopt a uniform system with no exemptions. Id. at 258-59 , 102 S.Ct. at 1055-56 .
Workers’ compensation, on the other hand, is essentially a financing system for contractual arrangements between worker and employer. It would not generally in *1213 terrupt a coherent scheme for the society to do any of the following:
(1) Allow religiously objecting employers to self-insure, thus insuring that they would not be “looted” through excessive premiums for the benefit of secular employers;
(2) Require, either through direct employee purchase, or employer purchase, insurance providing the same benefits as workers’ compensation; 1
(3) Allow employees who wish to work for religiously based enterprises, such as the Church here, to opt out of workers’ compensation and take their chances with the tort system, if they so choose.
Of course, as the court has indicated, the state of Ohio does provide the first option, and the church has made no attempt to exercise it. Under these circumstances, the concern expressed by the state, that employers such as the church are money-losers for the state, takes on greater persuasiveness.
The state’s figures are, however, not ironclad for the proposition that the plaintiff and similar churches would not be subsidizing the rest of the state. The state’s statistics are for an employer class only 62% of which are churches. Of those churches, less than 5% are churches with religious scruples similar to those of plaintiff. It is thus possible that additional fact-finding might develop that there is a good probability that the state wants to force the churches into the system because they are money-makers for the system. However, the plaintiff has submitted no affidavits to that effect.
Finally, the Supreme Court’s quite recent decision in Employment Division, Department of Human Resources of Oregon v. Smith, — U.S. -, 110 S.Ct. 1595, 1600 , 108 L.Ed.2d 876 (1990), indicates that the right of free exercise is limited by the necessity “to comply with a valid and neutral law of general applicability.” Despite the Supreme Court’s previous jurisprudence in cases such as Sherbert v. Verner, 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963), the Court now seems to be moving strongly away from those cases. In Smith , Justice Scalia stated for the Court that the Sherbert test of “compelling governmental interest” had never really been applied outside the unemployment compensation context, and never successfully applied. Id. 110 S.Ct. at 1602 .
In the unemployment compensation cases, the states made arguments similar to those here, that the state unemployment compensation funds might be depleted by the withdrawal of tax revenues, but those claims were brushed aside by the Supreme Court. See, e.g., Sherbert, 374 U.S. at 407 , 83 S.Ct. at 1795 ; Thomas v. Review Board, 450 U.S. 707, 718-19 , 723 n. 1, 101 S.Ct. 1425, 1432-32 , 1434 n. 1, 67 L.Ed.2d 624 (1981). Certainly, it would be difficult for an objective observer of the problems that could be caused by the exemption sought by plaintiff here (whether those problems be to the state fund or to workers who choose to enter religious employment) to believe that the government interest could meet the standard ringingly set forth in Sherbert :
[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.
Sherbert, 374 U.S. at 406 , 83 S.Ct. at 1794 (quoting Thomas v. Collins, 323 U.S. 516, 530 , 65 S.Ct. 315, 322 , 89 L.Ed. 430 (1945)).
Since the Supreme Court now appears to have confined the applicability of those words to the rather limited field of unemployment compensation, I must reluctantly concur in the court’s opinion.
. It would not matter in ultimate compensation or effect whether the employer or employee had to make the purchase. The costs would represent a cost of employment either way. See e.g., R. Miller, Economics Today at 124 (1973).