Part of my question in my long post on religious exemptions below is what it means for a claim to be religious. A related question is whether the requirement that employers provide insurance that covers, among other things, contraception, constitutes a substantial burden for an employer who believes the use of contraception to be immoral. Most discussions of this question have simply assumed that being compelled to provide such coverage amounts to being forced to provide impermissible material cooperation in the use of contraception. But I have not seen a detailed defense of that assertion, which strikes me as far from obviously true. In a recent email that was posted at Mirror of Justice, Marty Lederman asks a series of very important and challenging questions. Here's a taste, but go read the whole thing:

The employer would not "choose" for the health plan to include contraceptionthat would be a standard condition as a requirement of federal law (just as the postal employee cannot choose which letters to deliver, including to the abortion clinic, etc.). And, of course, and most importantly, the plan will not be used to subsidize purchase of insurance unless a particular employee chooses to use it in that way. In other words, there will always be intervening private choice, akin to that in the sort of voucher plan that many of the writers on this blog have long insisted breaks the chain of responsibility and endorsement between the state and religious education, social services. etc. And if and when an employee chooses to use the plan to cover contraception, not only will the employer not be required to administer or hand over the contraceptives (this is not, in other words, a case analogous to the doctor being required personally to perform an abortion), and not only will the funds not come directly from the employer, but the employer will not even know about the insurance company's reimbursementjust as if the employee had used her wages from the employer for the same purpose.