Duty to accommodate religious beliefs in insurance?

[Volokh, Eugene]

        It seems to me that whether religion is a lifestyle choice is a
matter that different theologies answer differently.  From the law's
perspective, I think the secular legal system ought to treat it as a choice,
albeit one that may be protected from private pressure in certain ways.

        A simple example:  If someone becomes unable to work as a result of
an injury, he becomes eligible for disability insurance under private
policies; becomes entitled, unless I'm mistaken, to social security
payments; and I think historically has been entitled to a variety of other
relief payments.  I believe the same applies to secularly recognized mental
disabilities as well.

        Imagine, though, someone else becomes "unable" to work -- from his
perspective -- as a result of a divine revelation that tells him that he
must retire from the world and devote himself to a life of meditation.  In
his view, he is just as "disabled" as someone who is physically unable to
work; to him, it's not a "'life-style' choice, like smoking or hang
gliding," but as holy an obligation as the Witnesses' obligation not to get
blood transfusions.  But does it follow that we must treat this the same way
as we would a physical or mental disability?  Or can we say that this is his
choice, and that we have no obligation to subsidize this choice?  I think
the answer is the latter, and I think the same applies as to the Witnesses'
medical preferences.

        Finally, let me give one more hypothetical, expanding a bit on what
I'd mentioned in an earlier post.  Say that a Scientologist has an insurance
policy that provides for psychiatric coverage.  He says, however, that his
belief system prohibits him from using secular psychiatric treatment, and
instead requires him to go through considerably more expensive "auditing"
sessions with a Scientology practitioner.  It is also his belief that his
Scientology makes him generally a much healthier person, and less of a drain
on the insurance company, though there are no studies either proving or
disproving this, partly because insurance companies don't keep track of
their policyholders' religions; and while they keep track of their
policyholders' claims for certain procedures, only a very few policyholders
have in fact asked for this sort of procedure. (I don't know whether the
religious view I describe is the orthodox view of most Scientologists, but
assume this is the sincere view of this particular Scientologist.)  Finally,
let us assume that such sessions do indeed improve his psychological
condition, in part precisely because he believes in their efficacy.

        What result?  And if we think that this Scientologist should have no
legal right to make us pay for his more expensive treatment, can this be
legally distinguished from the Jehovah's Witness?

        Eugene

> -----Original Message-----
> From: Richards, Edward P. [SMTP:RichardsE at UMKC.EDU]
> Sent: Friday, January 25, 2002 2:07 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Religious discrimination in insurance
>
> This discussion has treated religion as a "life-style" choice, like
> smoking or hang gliding, rather than like race or sex.  Is this really the
> presumption behind the civil rights laws that require private business to
> respect the free exercise of religion, or the constitutional cases on free
> exercise?  I though that the courts tended to assume that religion was an
> innate quality that was not fungible, but I may be wrong on this.
>
> Ed
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