RE: Rights of corporations and RFRAs
Does anyone know who is going to brief first(upside),and who is going to brief second (downside in the contraception cases? Or is each case going to brief on the normal schedule? The docket sheet said nothing late yesterday on this subject. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 27, 2013 12:35 AM To: Law Religion issues for Law Academics Subject: RE: Rights of corporations and RFRAs I think that's right, partly because the burden on stockholders of selling shares in a publicly traded corporation is much less than the burden of selling shares in a closely held corporation. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Tuesday, November 26, 2013 3:50 PM To: Law Religion issues for Law Academics Subject: RE: Rights of corporations and RFRAs I think there is considerable force to Eugene's argument about closely held corporations (although I'm not sure if the size of the enterprise needs to be taken into account too -- I'm still thinking about that.) Do I take it from your argument that you believe a publicly traded corporation would not be a useful stand-n for people? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 3:31 PM To: Law Religion issues for Law Academics Subject: Rights of corporations and RFRAs I've long thought that corporate rights make sense only to the extent that they are useful for stand-ins for the rights of people. (I support Citizens United precisely because of that.) And when it comes to closely held corporations, whose owners claim an objection to participating in some activity, including by paying for it or allowing it on their property, there are indeed rights of people involved. A simple hypothetical: A law requires that all retail stores sell lottery tickets. A store is owned by a corporation, which is in turn owned by (say) two brothers; they believe that gambling is a sin, and that facilitating gambling is a sin. (In that respect they are like Thomas in Thomas v. Review Bd., who believed not only that he shouldn't go to war, but also that he shouldn't help in warmaking.) The requirement, it seems to me, burdens their religious practice, even though they own their business through a corporate form. The corporate form is indeed a legal fiction, which is why I think corporate rights should only be recognized a stand-ins for the rights of people. But for the same reason burdens on people's religious practice shouldn't be ignored by the law by invoking the fiction that the gas station isn't really owned by the brothers but is instead owned by the corporation. The only question, I think, should be whether the brothers would have to sue under the relevant state RFRA in their own names, pointing to the burden that the lottery sales mandate imposes on them, or whether they could have the lawsuit be filed in the name of the corporation. But the bottom-line result should be that the owners of the closely held corporation could indeed assert a RFRA claim, whichever way it's done. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The ability to practice one's religion
The UK supreme court today rejected acclaim by owners of a bed and breakfast that they should have religious liberty right not to host a same sex couple. Here is link: http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2012_0065_Judgment.pdf Marc ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Rights of corporations and RFRAs
Not yet determined. Almost certainly on the March argument calendar. On Wed, Nov 27, 2013 at 9:06 AM, Marc Stern ste...@ajc.org wrote: Does anyone know who is going to brief first(upside),and who is going to brief second (downside in the contraception cases? Or is each case going to brief on the normal schedule? The docket sheet said nothing late yesterday on this subject. Marc -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 27, 2013 12:35 AM To: Law Religion issues for Law Academics Subject: RE: Rights of corporations and RFRAs I think that's right, partly because the burden on stockholders of selling shares in a publicly traded corporation is much less than the burden of selling shares in a closely held corporation. Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Tuesday, November 26, 2013 3:50 PM To: Law Religion issues for Law Academics Subject: RE: Rights of corporations and RFRAs I think there is considerable force to Eugene's argument about closely held corporations (although I'm not sure if the size of the enterprise needs to be taken into account too -- I'm still thinking about that.) Do I take it from your argument that you believe a publicly traded corporation would not be a useful stand-n for people? Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 3:31 PM To: Law Religion issues for Law Academics Subject: Rights of corporations and RFRAs I've long thought that corporate rights make sense only to the extent that they are useful for stand-ins for the rights of people. (I support Citizens United precisely because of that.) And when it comes to closely held corporations, whose owners claim an objection to participating in some activity, including by paying for it or allowing it on their property, there are indeed rights of people involved. A simple hypothetical: A law requires that all retail stores sell lottery tickets. A store is owned by a corporation, which is in turn owned by (say) two brothers; they believe that gambling is a sin, and that facilitating gambling is a sin. (In that respect they are like Thomas in Thomas v. Review Bd., who believed not only that he shouldn't go to war, but also that he shouldn't help in warmaking.) The requirement, it seems to me, burdens their religious practice, even though they own their business through a corporate form. The corporate form is indeed a legal fiction, which is why I think corporate rights should only be recognized a stand-ins for the rights of people. But for the same reason burdens on people's religious practice shouldn't be ignored by the law by invoking the fiction that the gas station isn't really owned by the brothers but is instead owned by the corporation. The only question, I think, should be whether the brothers would have to sue under the relevant state RFRA in their own names, pointing to the burden that the lottery sales mandate imposes on them, or whether they could have the lawsuit be filed in the name of the corporation. But the bottom-line result should be that the owners of the closely held corporation could indeed assert a RFRA claim, whichever way it's done. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web
Response to Tom Berg (and others)
Tom: Thanks so much for engaging with the piece so generously and skillfully. It’s heartening that the Establishment Clause issues are finally getting an airing—our only worry is that it may be too late for a proper briefing before the Supreme Court. But maybe some members of this list can help rectify that situation. Here are some responses to some of your points. We have doubts about whether the Supreme Court has articulated the third-party-burden test for religious accommodations as a balancing analysis. Maybe it has, but alternatively, the language in Cutter, Texas Monthly, and Amos could be read to carve out a categorical limit on legislative accommodations. Either way, however, burdens on third party nonbeneficiaries that were negligible would not pose an Establishment Clause problem. We also question whether all religious accommodations necessarily do impose burdens on third parties. How does allowing inmate access to religious literature despite prison mail regulations in Cutter burden secular inmates? It could be seen as unfair, as the Sixth Circuit held in that case, but not because it imposes a burden. The same could be said of religious garb in prisons. So a categorical rule against significant impositions on third parties would not eliminate all religious accommodations. Here, in any event, the burdens on third parties could be significant. Women who otherwise would be entitled to contraception coverage stand to lose some or all of that coverage, thereby imposing a real cost on them. We actually read Caldor to support that view—after all, the employer there could have found workers to cover for Sabbath observers; it just would have cost a lot. That’s what we are talking about here, too. Does the loss of a benefit count as a burden, no matter how large the difference in cost, or is it simply the non-receipt of a benefit? Of course, that is the baseline question, and such questions can be tricky, as you note. But we don’t see a devastating baseline problem in this case. Even if Hobby Lobby wins, women working at corporations owned by secular people and religiously-affiliated nonprofits like universities and hospitals will receive the coverage. Obamacare alters reasonable expectations and legal entitlements, just as many welfare-state programs and civil rights laws do. (Interestingly, even Hobby Lobby itself was providing such coverage before this controversy erupted and the company realized it had been doing so, so there may be historical support for the baseline as well.) We think the loss of a costly benefit like this one counts as a burden, and potentially a serious one. You point out that the provision of Title VII upheld in Amos did impose significant burdens on third parties, such as the employees who were discharged on religious grounds in that case. That’s right. But in Caldor, a case decided only two years earlier with the support of many of the same Justices who signed on to Amos, the Court held that burdens on nonbeneficiaries were too great. What explains the difference? We think the answer has to be that Amos concerned the associational integrity of a church itself, while Caldor concerned a for-profit corporation. *That’s* what Brennan meant when he said in Texas Monthly that the Title VII exemption “prevented potentially serious encroachments on protected religious freedoms.” While we ourselves might not endorse that carve out for churches, it reconciles the two outcomes. And it means that the Court will be concerned when accommodations for profit-seeking corporations owned by religious people impose serious costs on employees, as they may well here. At the very least, we should have the conversation. Stepping back, you say that society will strike the right balance between free exercise and nonestablishment interests. Probably you mean that courts will adjudicate RFRA correctly, without the need for constitutional intervention. Yet until now, the nonestablishment side of the leger has gone almost completely unnoticed in the litigation. Now that it has come to light, we hope it will tip the balance (in cases that have closely divided the circuit courts) toward protecting women. We’d like to briefly respond to an issue raised by Eugene and Alan as well. Although we aren’t prepared to take a definitive position at this point, we are inclined to agree that nothing much should turn on whether owners have adopted the corporate form. After all, the D.C. Circuit performed a strong RFRA analysis after rejecting the idea that corporations as such can claim the protection of that law. And nonprofit employers raise many of the same concerns (except that here the regulations protect female employees from loss of benefits). So the difference in legal form probably should not be decisive alone. But, on a realist approach, it also is not enough to say that the corporation is closely held. As Alan suggests, the size and
Re: Response to Tom Berg (and others)
Nelson, just on the third-party harm point, do you therefore think that Hosanna-Tabor was wrongly decided? Or do you think that it is something of a misnomer to treat a ministerial employee as a total third party? On Nov 27, 2013, at 9:12 AM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Tom: Thanks so much for engaging with the piece so generously and skillfully. It’s heartening that the Establishment Clause issues are finally getting an airing—our only worry is that it may be too late for a proper briefing before the Supreme Court. But maybe some members of this list can help rectify that situation. Here are some responses to some of your points. We have doubts about whether the Supreme Court has articulated the third-party-burden test for religious accommodations as a balancing analysis. Maybe it has, but alternatively, the language in Cutter, Texas Monthly, and Amos could be read to carve out a categorical limit on legislative accommodations. Either way, however, burdens on third party nonbeneficiaries that were negligible would not pose an Establishment Clause problem. We also question whether all religious accommodations necessarily do impose burdens on third parties. How does allowing inmate access to religious literature despite prison mail regulations in Cutter burden secular inmates? It could be seen as unfair, as the Sixth Circuit held in that case, but not because it imposes a burden. The same could be said of religious garb in prisons. So a categorical rule against significant impositions on third parties would not eliminate all religious accommodations. Here, in any event, the burdens on third parties could be significant. Women who otherwise would be entitled to contraception coverage stand to lose some or all of that coverage, thereby imposing a real cost on them. We actually read Caldor to support that view—after all, the employer there could have found workers to cover for Sabbath observers; it just would have cost a lot. That’s what we are talking about here, too. Does the loss of a benefit count as a burden, no matter how large the difference in cost, or is it simply the non-receipt of a benefit? Of course, that is the baseline question, and such questions can be tricky, as you note. But we don’t see a devastating baseline problem in this case. Even if Hobby Lobby wins, women working at corporations owned by secular people and religiously-affiliated nonprofits like universities and hospitals will receive the coverage. Obamacare alters reasonable expectations and legal entitlements, just as many welfare-state programs and civil rights laws do. (Interestingly, even Hobby Lobby itself was providing such coverage before this controversy erupted and the company realized it had been doing so, so there may be historical support for the baseline as well.) We think the loss of a costly benefit like this one counts as a burden, and potentially a serious one. You point out that the provision of Title VII upheld in Amos did impose significant burdens on third parties, such as the employees who were discharged on religious grounds in that case. That’s right. But in Caldor, a case decided only two years earlier with the support of many of the same Justices who signed on to Amos, the Court held that burdens on nonbeneficiaries were too great. What explains the difference? We think the answer has to be that Amos concerned the associational integrity of a church itself, while Caldor concerned a for-profit corporation. *That’s* what Brennan meant when he said in Texas Monthly that the Title VII exemption “prevented potentially serious encroachments on protected religious freedoms.” While we ourselves might not endorse that carve out for churches, it reconciles the two outcomes. And it means that the Court will be concerned when accommodations for profit-seeking corporations owned by religious people impose serious costs on employees, as they may well here. At the very least, we should have the conversation. Stepping back, you say that society will strike the right balance between free exercise and nonestablishment interests. Probably you mean that courts will adjudicate RFRA correctly, without the need for constitutional intervention. Yet until now, the nonestablishment side of the leger has gone almost completely unnoticed in the litigation. Now that it has come to light, we hope it will tip the balance (in cases that have closely divided the circuit courts) toward protecting women. We’d like to briefly respond to an issue raised by Eugene and Alan as well. Although we aren’t prepared to take a definitive position at this point, we are inclined to agree that nothing much should turn on whether owners have adopted the corporate form. After all, the D.C. Circuit performed a strong RFRA analysis after rejecting the idea that corporations as such can claim
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business owners and women. Happy Thanksgiving all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Nov 27, 2013 12:20 am Subject: RE: Patently Frivolous and discrimination But why would that turn a serious argument into a “patently frivolous” one? Both nonprofits and for-profits are engaged in monetary transactions. (U.S. v. Lee talked of people “enter[ing] into commercial activity as a matter of choice,” but education, as we all know, is a commercial activity whether carried on by non-profit institutions or for-profit ones.) Both choose to participate in such transactions. When either discriminates, this has an effect on third parties whom the law is trying to protect. Also, as Chip pointed out, Braunfeld v. Brown involved for-profit businesses, and no-one on the Court thought a free exercise claim brought by them was patently frivolous. And I should also add that the unemployment compensation claimants were also engaged in the commercial marketplace, selling their own labor for profit. The Court has never drawn a for-profit vs. nonprofit line when it comes to religious freedom claims, and though Lee hinted at a marketplace transaction vs. other conduct line, the Court hasn’t generally followed such a line (and in any event Lee ultimately applied the strict scrutiny test, rather than concluding that the marketplace transactions kept that test from being applicable). Likewise, to my knowledge lower courts have not drawn such a line. Eugene *From:* religionlaw-boun...@lists.ucla.edu [ mailto:religionlaw-boun...@lists.ucla.edureligionlaw-boun...@lists.ucla.edu?] *On Behalf Of *James Oleske *Sent:* Tuesday, November 26, 2013 6:13 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Patently Frivolous and discrimination But Bob Jones University is a nonprofit, which the Supreme Court noted at the beginning of its opinion, and we're
Re: Response to Tom Berg (and others)
Tom, Nelson, and Micah have very artfully and rigorously framed the relevant questions re: the role of third party harms and Establishment Clause concerns in the contraceptive mandate litigation. Paul's question was addressed to Nelson, but I would like to suggest an answer -- Hosanna-Tabor can and should rest completely on the doctrine that courts may not decide purely ecclesiastical questions. (See also the church property cases, back to Watson v. Jones and elsewhere under the American common law.) Fitness for ministry is such a question. Once that doctrine, which rests primarily on the Establishment Clause, is in play, third party harms (which are a second order consideration, involving questions of degree) no longer matter. Of course there will be third party harms when courts refuse to answer purely ecclesiastical questions -- someone will lose a litigation claim. But those harms can't be used to displace an absolute Establishment Clause prohibition. On Wed, Nov 27, 2013 at 10:44 AM, Paul Horwitz phorw...@hotmail.com wrote: Nelson, just on the third-party harm point, do you therefore think that Hosanna-Tabor was wrongly decided? Or do you think that it is something of a misnomer to treat a ministerial employee as a total third party? On Nov 27, 2013, at 9:12 AM, Nelson Tebbe nelson.te...@brooklaw.edu wrote: Tom: Thanks so much for engaging with the piece so generously and skillfully. It’s heartening that the Establishment Clause issues are finally getting an airing—our only worry is that it may be too late for a proper briefing before the Supreme Court. But maybe some members of this list can help rectify that situation. Here are some responses to some of your points. We have doubts about whether the Supreme Court has articulated the third-party-burden test for religious accommodations as a balancing analysis. Maybe it has, but alternatively, the language in Cutter, Texas Monthly, and Amos could be read to carve out a categorical limit on legislative accommodations. Either way, however, burdens on third party nonbeneficiaries that were negligible would not pose an Establishment Clause problem. We also question whether all religious accommodations necessarily do impose burdens on third parties. How does allowing inmate access to religious literature despite prison mail regulations in Cutter burden secular inmates? It could be seen as unfair, as the Sixth Circuit held in that case, but not because it imposes a burden. The same could be said of religious garb in prisons. So a categorical rule against significant impositions on third parties would not eliminate all religious accommodations. Here, in any event, the burdens on third parties could be significant. Women who otherwise would be entitled to contraception coverage stand to lose some or all of that coverage, thereby imposing a real cost on them. We actually read Caldor to support that view—after all, the employer there could have found workers to cover for Sabbath observers; it just would have cost a lot. That’s what we are talking about here, too. Does the loss of a benefit count as a burden, no matter how large the difference in cost, or is it simply the non-receipt of a benefit? Of course, that is the baseline question, and such questions can be tricky, as you note. But we don’t see a devastating baseline problem in this case. Even if Hobby Lobby wins, women working at corporations owned by secular people and religiously-affiliated nonprofits like universities and hospitals will receive the coverage. Obamacare alters reasonable expectations and legal entitlements, just as many welfare-state programs and civil rights laws do. (Interestingly, even Hobby Lobby itself was providing such coverage before this controversy erupted and the company realized it had been doing so, so there may be historical support for the baseline as well.) We think the loss of a costly benefit like this one counts as a burden, and potentially a serious one. You point out that the provision of Title VII upheld in Amos did impose significant burdens on third parties, such as the employees who were discharged on religious grounds in that case. That’s right. But in Caldor, a case decided only two years earlier with the support of many of the same Justices who signed on to Amos, the Court held that burdens on nonbeneficiaries were too great. What explains the difference? We think the answer has to be that Amos concerned the associational integrity of a church itself, while Caldor concerned a for-profit corporation. *That’s* what Brennan meant when he said in Texas Monthly that the Title VII exemption “prevented potentially serious encroachments on protected religious freedoms.” While we ourselves might not endorse that carve out for churches, it reconciles the two outcomes. And it means that the Court will be concerned when accommodations for profit-seeking corporations owned by
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business owners and women. Happy Thanksgiving all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.com https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene vol...@law.ucla.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Wed, Nov 27, 2013 12:20 am Subject: RE: Patently Frivolous and discrimination But why would that turn a serious argument into a “patently frivolous” one? Both nonprofits and for-profits are engaged in monetary transactions. (U.S. v. Lee talked of people “enter[ing] into commercial activity as a matter of choice,” but education, as we all know, is a commercial activity whether carried on by non-profit institutions or for-profit ones.) Both choose to participate in such transactions. When either
RE: The ability to practice one's religion
These are fascinating questions. Indeed, it may be that if the law prevents the exercise of conscience, then - at least with respect to certain claims concerning complicity with evil - there is no violation of conscience after all. Would conscience would demand civil disobedience and, if not, as Eugene suggests, is there nonetheless an injury (to conscience?) that we should recognize as a serious loss? Speaking specifically on the question of Catholic opposition to the contraception mandate, Thomas Joseph White and R.R. Reno wrote on this issue in the November 2012 issue of First Things, in an article that included the following observations (note the when possible and available steps caveats): one principle is clear: We should always seek to withdraw support and reduce material cooperation when possible. The failure to do so sends a message. It suggests that our material cooperation flows from assent, all the more so when we do not take the available steps to disentangle ourselves. Thomas Joseph White and R. R. Reno, A Mandate to Disobey, http://www.firstthings.com/article/2012/09/a-mandate-to-disobey Dan Conkle Maurer School of Law Indiana University Bloomington From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, November 27, 2013 12:57 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: The ability to practice one's religion Let me ask a different question about the contraceptive mandate, and one that I should stress is not relevant under RFRA; it's more a question of how exemptions should be crafted. I often here variants of the following argument for Hobby Lobby and similar companies: People shouldn't have to abandon their ability to follow their religions as a price of going into business. And I sympathize with that argument at a general level. I also think that, if an employer sincerely believes that it's wrong to even buy policies that coverage, say, abortifacents, then requiring the employer to do so imposes a substantial burden. And this is so even if the employer doesn't believe that it's wrong to pay taxes that pay for abortions (as taxes do in some states, and I suspect in some measure at the federal level, too). As Thomas v. Review Bd. made clear, religious observers necessarily draw lines about when participation in something becomes sinful complicity, and courts can't second-guess such sincere lines. At the same time, the fact is that the law does require Americans to pay taxes. People who really oppose abortion already have to somehow reconcile themselves to living in a country in which taxes sometimes go to pay for abortions. They have to somehow reconcile themselves to the possibility that the salaries they pay their employees sometimes go to pay for abortions. Indeed, I suspect that the lines that many opponents of abortion do draw are influenced by the places that they are told (by the law or by society) they cannot draw the line. There aren't a lot of people who draw the line in a place which bans them from paying their taxes when those taxes can be used to help fund abortion; but maybe that's precisely because they know that, if they draw the line there, they'll go to jail. I wonder whether, if employers were told that buying insurance policies for employees will be treated by the law the same as paying taxes - a government-imposed requirement to pay money - then nearly all employers would come around to drawing the line at a different place (e.g., at a place where they think it sinful to, for instance, perform abortions or allow abortions on their physical property, but not to buy insurance policies that cover abortifacents). Should that matter to us? Should we think that, just as not that much has been lost in forcing everyone (not just businesspeople but everyone) to pay taxes that go to things that they may see are sinful, not that much would be lost in imposing similar obligations to pay employee benefits that cover things that the employers may see are sinful? Or should we think that a great deal has indeed been lost - though necessarily so - in denying exemptions to religious tax objectors, and that still more will be lots (and without as much pressing necessity) in denying exemptions to religious insurance payment objectors? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law *before *the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision- contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see *In re Union Pacific R. Employment Practices Lit.*, 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.netwrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Chip-- it might be a standing issue regarding the religious discrimination but I still think it has legs because, eg, a Presbyterian is having her job benefits limited solely according to religion that she doesn't share, in contravention of both economics and health standards. Shaping a compensation package to reflect one religion strikes me as similar the argument raised by the woman who challenges the employer who forbids the wearing of a headscarf. Why doesn't a woman's religious beliefs that require family planning and even abortion particularly where her health and life are implicated have a Title VII claim? How is this different from the woman who demands the right to wear a headscarf on the reasoning of those who back RFRA and expansive religious liberty? On another extremely important pr-- I would also point out that benefits law is relevant here and not yet mentioned by anyone -- employers are under a fiduciary duty to handle their employees health benefits plans solely for the benefit of the employees. If they cannot do so for ethical or other reasons, they must step aside and put the benefits into the hands of a fiduciary who will handle the benefits in the interest of the employees. This attempt to imprint their benefits compensation package according to their religion is a violation of their fiduciary duty. I wonder whether the lawyers for the companies involved or the bishops are advising these companies that they are teeing themselves up for potentially ruinous lawsuits by female employees for breach of fiduciary duty and explicit gender discrimination? On this point-- the least restrictive means is to appoint an outside plan administrator. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Marty- one addition --women will also have to pay for oral contraceptives to stop excessive bleeding, cramps, and hormone- triggered acne. I think this discussion needs to factor in the medical uses beyond contraception for millions of women over the course of their lives. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 11:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government is relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law before the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
An initial response to the sex discrimination question: does an employer engage in sex discrimination by refusing to fund (or provide insurance covering) sterilization services, as required by the ACA? Mark Mark S. Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Ira Lupu icl...@law.gwu.edu Date: 11/27/2013 8:14 AM (GMT-08:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley mwor...@byulaw.netmailto:mwor...@byulaw.net wrote: I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware. Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, hamilto...@aol.commailto:hamilto...@aol.com wrote: The Court has not drawn such a line, in part because it hasn't thought about it carefully. Citizens United brings the possibilities to the forefront. In any event, the for-profit/nonprofit difference makes a meaningful difference in this case, because it is in the ACA's women's reproductive care mandate, and it is in Title VII, which protects women.All of my postings have been in this arena, and given the pressures of this holiday week, I didn't want to lose track of that focus with the lunch hypo Eugene suggested. It is undoubtedly interesting, but I don't think very illuminating given there is no federal civil rights or constitutional right to lunch or food generally. I noticed on NCR that there is some talk by the bishops in light of the Pope's welcome focus on the poor, about the fundamental right to food, but that takes us far afield from Hobby Lobby with all due respect to Eugene. I had posed some on-point hypotheticals I am deeply interested in knowing folks' views on, yet it was lost in the fascinating topics up for discussion. Here are a few modifications and additions to those. 1. Can employers successfully invoke RFRA to follow their religious beliefs to impose headscarves on every woman in a for-profit corporation of over 50 employees (Mandate + Title VII at play)? 2. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar women from using contraception to stop a woman's constant bleeding due to hormone imablances? Or to halt monthly debilitating cramps? 3. Can employers successfully invoke RFRA to follow their religious beliefs against contraception to bar families from providing oral contraceptives to girls with disfiguring acne triggered by hormonal shifts? 4. Can employers successfully invoke RFRA to follow their religious beliefs against women working outside the home, and therefore scale salaries to deincentivize women and drive them from the workplace. 5. Can an employer successfully invoke RFRA to follow their religious beliefs and fire any female employee who obtains an abortion (which is consistent w her religious beliefs)? All thoughts on these hypotheticals would be greatly appreciated as we work through this important issue for religious business owners and women. Happy Thanksgiving all-- Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University 55 Fifth Avenue New York, NY 10003 (212) 790-0215 http://sol-reform.comhttp://sol-reform.com/ https://www.facebook.com/professormarciahamilton?fref=ts https://twitter.com/marci_hamilton -Original Message- From: Volokh, Eugene
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
This may or may not be relevant to the constitutional question, but I think it's likely that the religious employers in these cases would not object to providing coverage for those medications if prescribed for non-contraceptive purposes (because contraception would be a secondary effect). Mark S. Scarberry Pepperdine University School of Law Marci Hamilton wrote: Marty- one addition --women will also have to pay for oral contraceptives to stop excessive bleeding, cramps, and hormone- triggered acne. I think this discussion needs to factor in the medical uses beyond contraception for millions of women over the course of their lives. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton Sent from my Verizon Wireless 4G LTE Smartphone ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Discrimination under Title VII and RFRA (was Patently Frivolous)
In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling
RE: Response to Tom Berg (and others)
I should say that I'm not opposed to this answer. I do think that the ministerial employee cases do raise questions about whether someone who participates in that kind of central and official capacity in the life of a church can really be said to be a genuine third party facing third-party harms. But I think Chip's answer has a lot to recommend it. I would note, however, that although it may work in the common run of cases, it will inevitably raise definitional issues in borderline cases (or not so borderline, apparently, as the mandate litigation suggests). Some of us think those definitional questions are real but are not sufficient reason to throw out the baby with the bathwater. Others, in this and other areas (eg., the Press Clause), are driven by such questions, and by a general preference for formalism and seeming elegance in the law, to reject any approach that would require courts to draw such distinctions. I personally favor an approach to the mandate cases that resolves them at the burden and/or balancing stage rather than at the categorical stage. And I am interested in the way that these cases have provoked or laid bare a tension about one's general constitutional methods. For more, although I'm pretty clear in the post that it's a rough take, see here: http://prawfsblawg.blogs.com/prawfsblawg/2013/11/two-cases.html. Date: Wed, 27 Nov 2013 11:03:59 -0500 Subject: Re: Response to Tom Berg (and others) From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Tom, Nelson, and Micah have very artfully and rigorously framed the relevant questions re: the role of third party harms and Establishment Clause concerns in the contraceptive mandate litigation. Paul's question was addressed to Nelson, but I would like to suggest an answer -- Hosanna-Tabor can and should rest completely on the doctrine that courts may not decide purely ecclesiastical questions. (See also the church property cases, back to Watson v. Jones and elsewhere under the American common law.) Fitness for ministry is such a question. Once that doctrine, which rests primarily on the Establishment Clause, is in play, third party harms (which are a second order consideration, involving questions of degree) no longer matter. Of course there will be third party harms when courts refuse to answer purely ecclesiastical questions -- someone will lose a litigation claim. But those harms can't be used to displace an absolute Establishment Clause prohibition. On Wed, Nov 27, 2013 at 10:44 AM, Paul Horwitz phorw...@hotmail.com wrote: Nelson, just on the third-party harm point, do you therefore think that Hosanna-Tabor was wrongly decided? Or do you think that it is something of a misnomer to treat a ministerial employee as a total third party? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
There is at least one district court decision upholding the EEOC's view of the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001): Having reviewed the legislative history of Title VII and the PDA, the language of the statute itself, and the relevant case law, the Court finds that Bartell's exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that Bartell's prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII. Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. In light of the fact that prescription contraceptives are used only by women, Bartell's choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory. Marty is correct that the government is relying on women's equality, but their brief to the Tenth Circuit did not invoke Title VII, the PDA, the EEOC interpretation, or Erickson in support of the equality interest. In retrospect, that strikes me as a big oversight. But I must admit that I hadn't thought of the argument until one of my seminar students made it in a paper they are writing about Hobby Lobby. On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman lederman.ma...@gmail.comwrote: The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law *before *the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision- contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see *In re Union Pacific R. Employment Practices Lit.*, 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of legally compelled fringe benefits. I have not read a single post that replies to that way of framing the argument. If we view this as an attempt to gain a RFRA-based exemption from Title VII as well as from the ACA, does that change the analysis? Doesn't the government's compelling interest argument get stronger -- under-inclusion is no longer a problem of the same degree, and cases like Bob Jones University come into the mix? Are there good answers to this way of framing the question? Is it too late for the government to so frame it in the Supreme Court? ___ To post, send message to Religionlaw@lists.ucla.edu To
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
I certainly hope they will rely on these statutes which are evidence of (1) the ingrained and ongoing persistence of gender discrimination across society and in private institutions; (2) the need to be vigilant as these hard-fought rights can be compromised at any time; and (3) this religious liberty argument is in fact an argument that necessarily disables women's equality and bodily integrity. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, James Oleske jole...@lclark.edu wrote: There is at least one district court decision upholding the EEOC's view of the PDA. See Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266, 1271-72 (W.D. Wash. 2001): Having reviewed the legislative history of Title VII and the PDA, the language of the statute itself, and the relevant case law, the Court finds that Bartell's exclusion of prescription contraception from its prescription plan is inconsistent with the requirements of federal law. The PDA is not a begrudging recognition of a limited grant of rights to a strictly defined group of women who happen to be pregnant. Read in the context of Title VII as a whole, it is a broad acknowledgment of the intent of Congress to outlaw any and all discrimination against any and all women in the terms and conditions of their employment, including the benefits an employer provides to its employees. Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs. Even if one were to assume that Bartell's prescription plan was not the result of intentional discrimination, the exclusion of women-only benefits from a generally comprehensive prescription plan is sex discrimination under Title VII. Title VII does not require employers to offer any particular type or category of benefit. However, when an employer decides to offer a prescription plan covering everything except a few specifically excluded drugs and devices, it has a legal obligation to make sure that the resulting plan does not discriminate based on sex-based characteristics and that it provides equally comprehensive coverage for both sexes. In light of the fact that prescription contraceptives are used only by women, Bartell's choice to exclude that particular benefit from its generally applicable benefit plan is discriminatory. Marty is correct that the government is relying on women's equality, but their brief to the Tenth Circuit did not invoke Title VII, the PDA, the EEOC interpretation, or Erickson in support of the equality interest. In retrospect, that strikes me as a big oversight. But I must admit that I hadn't thought of the argument until one of my seminar students made it in a paper they are writing about Hobby Lobby. On Wed, Nov 27, 2013 at 8:44 AM, Marty Lederman lederman.ma...@gmail.com wrote: The government is relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without. As for whether an employer's failure to cover contraception would have violated federal law before the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), available at http://www.eeoc.gov/policy/docs/decision-contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see In re Union Pacific R. Employment Practices Lit., 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu icl...@law.gwu.edu wrote: All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is therefore a sex discriminatory denial of
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use certain medicines or drugs) rather than just refusing to pay for the relevant goods. And Marci's claim that Hobby Lobby and others are engaging in religious discrimination seems wrong to me -- the refusal to cover affects every female employee, regardless of her religious beliefs or affiliation or conduct. But Marci's argument that Hobby Lobby and others are engaging in sex discrimination, in violation, of Title VII, seems much more persuasive - the coverage refusal affects all women and only women, and is
RE: Discrimination under Title VII and RFRA (was Patently Frivolous)
They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- -- From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu [icl...@law.gwu.edu] Sent: Wednesday, November 27, 2013 10:12 AM To: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) All of Marci's hypotheticals are loaded up, because they involve direct imposition on women's behavior (wear head scarves, don't use
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they are less expensive and pose a lower risk of complications than female surgical sterilization methods. Plus, he says, waiving co-payments for services for one sex but not the other raises issues of discrimination. - Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918 Fax: 651 962 4881 E-mail: tcb...@stthomas.edumailto:tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com -- -- From: religionlaw-boun...@lists.ucla.edu
RE: Discrimination under Title VII and RFRA (was Patently Frivolous)
The owners of Hobby Lobby are Protestants. The owners of Conestoga Wood are Mennonites. They are opposed to abortion. They object to drugs or devices that may work post-fertilization. They are not opposed to contraception that works, certainly and exclusively, by other mechanisms. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 1:10 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:46 PM, Douglas Laycock dlayc...@virginia.edu wrote: They are not. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Wednesday, November 27, 2013 12:32 PM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: Discrimination under Title VII and RFRA (was Patently Frivolous) Tom-- they are not opposed to the Pill? Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 27, 2013, at 12:16 PM, Berg, Thomas C. tcb...@stthomas.edu wrote: In response to Chip, As to the plaintiffs in Hobby Lobby and Conestoga, they object only to certain medicines/methods that they believe cause abortions of fertilized embryos. Unless opposition to abortion is a form of statutory sex discrimination, which the Court rejected in Bray v. Alexandria Women's Health Center, this element at least complicates any argument that sex discrimination is the interest in these cases. (The government asserts that abortion is not involved here, for both legal and medical reasons, but this at least complicates the matter--especially in a case where the question concerns the objector's conscientious belief.) Moreover, as to the Catholic plaintiffs--those opposed to contraception as well as abortion--all of the complaints, as I remember, state that plaintiffs' object to paying for sterilization as well as for abortion and contraception. Presumably they would object to having to pay for vasectomies--if the mandate required those, which it apparently does not. This article from Kaiser Health News indicates that the relevant parts of the mandate only covers preventive services for women. http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx If this article is wrong, someone please correct me. But it would be strange for the government to enforce a regulation covering only services for women and then claim that the one who objects to it is engaged in sex discrimination (when there is a good likelihood that the moral objections would extend to relevant services for males). There is of course the argument for the importance of contraceptive access to women's health, life-planning, and autonomy. The government has made that argument strenuously, and we'll see if it succeeds on these facts. But it seems to me that going further and framing the issue as sex discrimination by the objectors faces problems. Tom P.S. here is the relevant passage from the link above: 1) Are male-based contraceptive methods, such as vasectomies or condoms, covered by the rule? An HHS official said on Friday that women’s preventive services guidelines apply to women only. Guidelines issued by the Health Resources and Services Administration, part of HHS, require coverage without cost sharing for all Food and Drug Administration-approved contraceptive methods, sterilization procedures and patient education and counseling for all women with reproductive capacity as prescribed by a provider, according to the Federal Register. The insurers' letter from September says they interpreted the rule to include only female-based contraception and that the requirement to waive co-payments does not apply to methods and procedures intended for males. But Adam Sonfield, senior public policy associate at the Guttmacher Institute, a reproductive health research group, says the language is unclear, and it would be foolish to exclude vasectomies. For one thing, he says, they
Re: Discrimination under Title VII and RFRA (was Patently Frivolous)
The medications which are normally prescribed for birth control purposes, which we commonly call contraceptives, also have other uses, which uses may be perfectly harmonious with Catholic teaching. I am not aware of any prescription drug plan offered through a Catholic organization that does not cover such drugs for those uses; that's not to say they don't exist, but I am not aware of them. The drugs are prescribed the same way any drug is prescribed (i.e., no pre-approval by anyone), but the doctors and patients know/should know that they are only for those purposes, and not for contraceptive purposes. Enforcement of that understanding is of course variegated. The Catholic objection to the contraceptive mandate, then, as I understand it, has nothing to do with medications that are medically prescribed for medical conditions, but to medications prescribed as contraceptives (i.e, for voluntary lifestyle choices). I'd be happy to be corrected on any of this. Richard Dougherty University of Dallas On Wed, Nov 27, 2013 at 12:09 PM, Marci Hamilton hamilto...@aol.com wrote: So how does it work? The women need pre approval from their boss? And I thought the bishops oppose the Pill and these are devout Catholics. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Response to Tom Berg (and others)
A thoughtful response, Nelson and Micah, to an equally thoughtful post, Tom. So here are my questions, Nelson (and Micah and Marci etc.) Let's assume the cost of medical contraceptive coverage is $300 per year (a totally made up number). 1. If a religious employer (individual or corporation) as a matter of conscience objects to paying this amount to buy medical contraceptive insurance coverage for his employees, would it eliminate (or at least move from substantial to insubstantial) the burden on the employer's religious liberty if the employer was given an option to spend the $300 on another public good that was fully consistent with his faith (medical care for veterans, for example)? This would be an accommodation similar to the one offered to conscientious objectors who are required to do alternative (peaceful) service instead of military service. 2. If the government spends $300 (more or less) to buy medical contraceptive insurance coverage for the employees of religious employers who do not receive such coverage from their employers because the employer elects to spend the $300 on the alternative public goods identified in the religious accommodation, would that satisfactorily resolve the health and gender equity concerns that the government asserts to justify the medical contraceptive coverage mandate? 3. If the answer to questions 1 and 2 are yes, why isn't this kind of an accommodation a less restrictive alternative (an alternative that is less burdensome to religious liberty) that adequately furthers the government's compelling interest in creating the mandate? Happy Thanksgiving to all! Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Wednesday, November 27, 2013 6:07 AM To: religionlaw@lists.ucla.edu Subject: Response to Tom Berg (and others) Tom: Thanks so much for engaging with the piece so generously and skillfully. It's heartening that the Establishment Clause issues are finally getting an airing-our only worry is that it may be too late for a proper briefing before the Supreme Court. But maybe some members of this list can help rectify that situation. Here are some responses to some of your points. We have doubts about whether the Supreme Court has articulated the third-party-burden test for religious accommodations as a balancing analysis. Maybe it has, but alternatively, the language in Cutter, Texas Monthly, and Amos could be read to carve out a categorical limit on legislative accommodations. Either way, however, burdens on third party nonbeneficiaries that were negligible would not pose an Establishment Clause problem. We also question whether all religious accommodations necessarily do impose burdens on third parties. How does allowing inmate access to religious literature despite prison mail regulations in Cutter burden secular inmates? It could be seen as unfair, as the Sixth Circuit held in that case, but not because it imposes a burden. The same could be said of religious garb in prisons. So a categorical rule against significant impositions on third parties would not eliminate all religious accommodations. Here, in any event, the burdens on third parties could be significant. Women who otherwise would be entitled to contraception coverage stand to lose some or all of that coverage, thereby imposing a real cost on them. We actually read Caldor to support that view-after all, the employer there could have found workers to cover for Sabbath observers; it just would have cost a lot. That's what we are talking about here, too. Does the loss of a benefit count as a burden, no matter how large the difference in cost, or is it simply the non-receipt of a benefit? Of course, that is the baseline question, and such questions can be tricky, as you note. But we don't see a devastating baseline problem in this case. Even if Hobby Lobby wins, women working at corporations owned by secular people and religiously-affiliated nonprofits like universities and hospitals will receive the coverage. Obamacare alters reasonable expectations and legal entitlements, just as many welfare-state programs and civil rights laws do. (Interestingly, even Hobby Lobby itself was providing such coverage before this controversy erupted and the company realized it had been doing so, so there may be historical support for the baseline as well.) We think the loss of a costly benefit like this one counts as a burden, and potentially a serious one. You point out that the provision of Title VII upheld in Amos did impose significant burdens on third parties, such as the employees who were discharged on religious grounds in that case. That's right. But in Caldor, a case decided only two years earlier with the support of many of the same Justices who signed on to Amos, the Court held that burdens on nonbeneficiaries were too great. What explains
RE: Contraception Mandate
I have a lot of trouble with the argument that religious accommodations that effectively deny third parties government-mandated benefits to which they are otherwise entitled are not subject to Establishment Clause review. It is true that the government doesn’t have to protect anyone against employment discrimination and can decide how far it wants to extend such protection. It is also true that the government isn’t required to protect all people all the time against crimes like assault and battery (See Deshaney) or torts like conversion (See Flagg Brothers). But surely an exemption that allows religious individuals to assault third parties or commandeer their property violates the Establishment Clause. I agree that the accommodation upheld in Amos burdened the employee who lost his job. I think the Court’s cases recognizing some Establishment Clause limit on accommodations involve some implied balancing. Implied balancing is necessary to determine whether an accommodation goes too far in burdening third parties and whether the accommodation does not impermissibly favor certain faiths over others. That’s one of the reasons I think Smith is unpersuasive when it rejects free exercise claims against neutral laws of general applicability in order to avoid subjective judicial balancing. When the job of granting accommodations is assigned to the legislature, court’s will have to engage in the same kind of balancing that they avoid in Free Exercise cases under Smith when they adjudicate Establishment Clause challenges to the accommodation because it allegedly impermissibly burdens third parties or favors certain religions over others. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Tuesday, November 26, 2013 9:43 PM To: Law Religion issues for Law Academics Subject: RE: Contraception Mandate I do indeed think so. The government doesn’t have to extend a government-mandated benefit to everyone; Title VII protections, for instance, aren’t extended to employees of small businesses, and are otherwise limited in various ways. Indeed, a law can’t discriminate based on a beneficiary’s religion in extending such a benefit (except perhaps when the benefit is itself a religious accommodation). But I don’t think that there should be an Establishment Clause problem with a law saying that, for instance, those tenants who want to rent from religious objector landlords don’t get the protections of marital status discrimination law, those employees who work for religious vegetarian landlords don’t get the protections of the meaty lunch program, or those employees who work for employers who object to paying for contraceptives or abortifacents don’t get the protections of the relevant health care insurance program. As to Cutter, the only way I can see of reconciling it with Amos is by not reading Thornton too broadly. The accommodation in Amos did not, after all, at all “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries,” if “burdens” is viewed as included denial of a government-mandated benefit. The employee in Amos was seriously burdened indeed, by loss of his job, and not just of some benefit under the health insurance coverage. That the employer was a nonprofit, after all, did not eliminate or even diminish the burden on the employees; employees of nonprofits are just as burdened by loss of a job as employees of for-profits. And the law in Amos did not call on courts to “take adequate account of the burden.” Eugene Alan Brownstein writes: Eugene, are you arguing that an exemption that effectively denies a class of individuals a government-mandated benefit that there are otherwise entitled to receive can never violate the Establishment Clause under Amos, Thornton, and Cutter? I think that requires courts to engage in an unhelpful inquiry trying to distinguish between benefits and burdens (does an exemption from laws requiring that employers provide employees a safe working environment impose a burden on workers or deny them a government-mandated benefit). I think Cutter clearly suggests that exemptions would be unacceptable, not because they give the force of law to a believer’s action, but because of “the burdens a requested accommodation may impose on non-beneficiaries” and because an accommodation would “impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution.” I agree that the mere fact that some burden is imposed or benefit denied does not demonstrate that an exemption violates the Establishment Clause. But accommodations that either impose direct burdens or interfere with mandated benefits can violate the Establishment Clause if they go too far. Alan Brownstein ___ To post,
Religion-based unit veto by commercial, for-profit, corporate employers
You all are making me more and more fond of Smith and less fond of RFRA than I ever thought possible! Smith analysis: ACA is a neutral generally applicable law and the employer cannot claim a free exercise violation because it requires coverages they don’t like. RFRA: few have considered the substantiality of the burden — it seems an insubstantial burden to me under just about any fair reading of “substantial.” But assuming that we now consider requiring someone who enters the marketplace to comply with the general rules of the marketplace for health benefits, ERISA, FICA, OSHA, and everything else a substantial burden if they can show they disagree with the requirement for religious reasons, then maybe it is substantial. Where is the compelling state interest? Gender equality seems to qualify. Health services of a uniform type for the benefit of society would seem to qualify. So on to the least restrictive means. What is a less restrictive, equally effective regulation? Shifting payment to the government? To someone else? How about the government mandates this, but the employer can choose to have someone else administer the program? Isn’t there a way for the employer to distance itself from the taint? Of course one cannot fully do so, but nor can these employers fully distance themselves from any other aspects of society they don’t like that their taxes help fund. We have another example of the liberty v. equality tension in our country. To me this is an easy case on policy and on law — equality and health win out over problematic and unnecessary assertions of free exercise — no one forced the owners of these businesses to incorporate or enter the marketplace and to grow. They did so and they are bound by the same rules as everyone else absence some substantial burden they can show. A few dollars (actually probably invisible in the total coverage) is not a substantial burden. How about establishment? The government is establishing no religion. It has only secular purposes for these rules — health and gender equality. All that to one side, this is another case where the law is whatever 5 votes ultimately say it is. I find this one hard to count. Kennedy’s liberty bias may turn out to be the deciding vote, but I don’t see all the conservatives buying the burden argument or adopting commercial employers' arguments about least restrictive effective alternative. I can see Thomas, Scalia, and Roberts all having trouble with this case. On the other side, I’m not fully sure where Breyer would come out on this. But, I suppose the standard 4-4 split with Kennedy in the balance will prevail and does Kennedy view this as a significant enough intrusion on liberty to hamstring the majoritarian branches like this? Not sure. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ Politics hates a vacuum. If it isn't filled with hope, someone will fill it with fear. Naomi Klein ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: The ability to practice one's religion
There is another aspect to this which it seems to me has gone largely unnoticed. The 2 cases that the Supreme Court has agreed to review are from individuals and businesses who do not object to contraception, but instead object to abortion and believe that some contraceptives are abotrifacients because they may prevent a fertilized egg from being implanted in the uterus. Generally here the objections are to Plan B, Ella and IUDs. So presumably any relief granted to these plaintiffs should only be for coverage of these particular contraceptive methods. Also (though I am no scientist), there appears to be considerable controversy about whether even these contraceptive methods in fact interfere with implantation as opposed to interfering with fertilization. At most, apparently, they only interfere with implantation some times, and may not at all. So this makes any complicity with evil even more attenuated. And should the courts examine the science of all this? Suppose the court finds that Plan B never really interferes with implantation, and that these objectors merely have a wrong view of the science. Is it a burden on free exercise to require cooperation with something that is mistakenly believed to be an abortifacient? On the other hand, the cases brought by Catholic objectors involve a broader objection-- abortifacients AND contraceptives. Though apparently Catholic objectors are all right with contraceptives that are prescribed for medical conditions, and not for the purpose of contraception. So that would seem to mean that the scope of relief-- and the kinds of insurance policies companies will need to write in response-- will be different in different cases. At any rate, the relief would not seem to be a broad invalidation of coverage for all medications that can be used as contraceptives. And one more thing-- to the extent that objections are only to abortifacients, Plan B is available over-the-counter to women 18 years of age and older. Does the contraceptive coverage mandate apply to over the counter contraceptives when an insurance policy does not apply to other over the counter drugs? Howard Friedman From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Conkle, Daniel O. [con...@indiana.edu] Sent: Wednesday, November 27, 2013 11:25 AM To: Law Religion issues for Law Academics (religionlaw@lists.ucla.edu) Subject: RE: The ability to practice one's religion These are fascinating questions. Indeed, it may be that if the law prevents the exercise of conscience, then – at least with respect to certain claims concerning complicity with evil – there is no violation of conscience after all. Would conscience would demand civil disobedience and, if not, as Eugene suggests, is there nonetheless an injury (to conscience?) that we should recognize as a serious loss? Speaking specifically on the question of Catholic opposition to the contraception mandate, Thomas Joseph White and R.R. Reno wrote on this issue in the November 2012 issue of First Things, in an article that included the following observations (note the “when possible” and “available steps” caveats): “one principle is clear: We should always seek to withdraw support and reduce material cooperation when possible. The failure to do so sends a message. It suggests that our material cooperation flows from assent, all the more so when we do not take the available steps to disentangle ourselves.” Thomas Joseph White and R. R. Reno, A Mandate to Disobey, http://www.firstthings.com/article/2012/09/a-mandate-to-disobey Dan Conkle Maurer School of Law Indiana University Bloomington ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Patently Frivolous and discrimination
Eugene's argument below goes to the merits of distinguishing between for-profit corporations and non-profit religious institutions, and as I said in my initial message, I think there may well be a fine argument for taking a new approach to the merits issue in Hobby Lobby. Patently frivolous is not my description of exemption claims by for-profit corporations; it was the Supreme Court's description of the religious liberty claim in Piggie Park. My sense is that the language from the Piggie Park Court was reflective of an accepted notion at the time that for-profit businesses did not have a presumptive right to religious exemptions, even if non-profit religious institutions might have such a right. A similar notion is prevalent in federal and state statutes that distinguish between for-profits and non-profits for exemption purposes; that notion runs through several of the opinions in Amos; and it strikes me as the most likely explanation for why Piggie Park's arguments got the back of the judicial hand, while Bob Jones University's arguments got serious consideration by both the executive and judicial branches. And I continue to think it's fair to say that, until recently, it would have seemed off the wall to argue that companies like Piggie Park and Hobby Lobby have a presumptive right to religious exemptions from commercial regulations. But of course, the Commerce Clause argument in NFIB v. Sebelius also would have seemed off the wall in the 1960s when Piggie Park was decided, and that argument was far from frivolous in 2012, when it garnered 5 votes on the Supreme Court. Likewise, I think Hobby Lobby's argument today is far from frivolous, and it could well garner a majority on the Court. As for Braunfeld and Lee, I appreciate the effort to turn them into pro-exemption cases, but both actually denied exemptions to for-profit businesses, and Lee ended with language that is very difficult to reconcile with such exemptions. And had those cases involved restaurant or retail chains, rather than sympathetic sole proprietors, I'm guessing the Court would have disposed of their claims with less solicitude. With regard to the merits of distinguishing between non-profit religious institutions and for-profit businesses, my inclination is to see a fundamental difference between the operation of a non-profit religious institution -- an activity which in itself seems to be the exercise of religion -- and the operation of a for-profit business -- an activity which in itself does not seem to be the exercise of religion. And it does not strike me as surprising that the law would take very different approaches to religious exemptions in those two contexts, whether under the Constitution or statutes. Cf. Hosanna-Tabor Evangelical Lutheran Church Sch. v. E.E.O.C., 132 S. Ct. 694, 706 (2012) (concluding that the text of the First Amendment itself ... gives special solicitude to the rights of religious organizations). On Tue, Nov 26, 2013 at 9:17 PM, Volokh, Eugene vol...@law.ucla.edu wrote: But why would that turn a serious argument into a “patently frivolous” one? Both nonprofits and for-profits are engaged in monetary transactions. (U.S. v. Lee talked of people “enter[ing] into commercial activity as a matter of choice,” but education, as we all know, is a commercial activity whether carried on by non-profit institutions or for-profit ones.) Both choose to participate in such transactions. When either discriminates, this has an effect on third parties whom the law is trying to protect. Also, as Chip pointed out, Braunfeld v. Brown involved for-profit businesses, and no-one on the Court thought a free exercise claim brought by them was patently frivolous. And I should also add that the unemployment compensation claimants were also engaged in the commercial marketplace, selling their own labor for profit. The Court has never drawn a for-profit vs. nonprofit line when it comes to religious freedom claims, and though Lee hinted at a marketplace transaction vs. other conduct line, the Court hasn’t generally followed such a line (and in any event Lee ultimately applied the strict scrutiny test, rather than concluding that the marketplace transactions kept that test from being applicable). Likewise, to my knowledge lower courts have not drawn such a line. Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *James Oleske *Sent:* Tuesday, November 26, 2013 6:13 PM *To:* Law Religion issues for Law Academics *Subject:* Re: Patently Frivolous and discrimination But Bob Jones University is a nonprofit, which the Supreme Court noted at the beginning of its opinion, and we're talking about the Court's treatment of religious exemption claims by for-profit businesses. On Tue, Nov 26, 2013 at 4:59 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I appreciate the
Sex discrimination and objections to apparently abortifacent contraceptives
Though I think the ACA regulations should be seen as substantially burden the plaintiffs' exercise of religion, I think the strict scrutiny argument is much harder to analyze, and perhaps the government should indeed win under strict scrutiny. And I can see the appeal of the sex discrimination argument. Nonetheless, I wonder how this fits within the Court's broader abortion jurisprudence. I realize that people (including Justice Ginsburg) have argued that abortion bans should indeed have been viewed as presumptively unconstitutional sex discrimination, but my sense is that there aren't five votes for that on the Court. After all, under this view any restrictions on abortion (including ones that Justice Kennedy would be prepared to accept as not undue burdens) would be presumptively unconstitutional, and subject to near-strict scrutiny. If I'm right, and abortion restrictions aren't treated as sex discrimination when imposed by the government, would refusals to pay for certain contraceptives - based on the objector's view that the contraceptives are actually abortifacents - be treated as sex discrimination for RFRA purposes? Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Patently Frivolous and discrimination
Jim Oleske writes: My sense is that the language from the Piggie Park Court was reflective of an accepted notion at the time that for-profit businesses did not have a presumptive right to religious exemptions, even if non-profit religious institutions might have such a right Why would that be so, given Braunfeld v. Brown? I agree that the challengers lost there, but they surely didn't lose on the grounds that for-profit businesses lack Free Exercise Clause rights because they are commercial concerns. I would think that the likelier explanation of the Piggie Park patently frivolous comment is simply that the Court viewed the government's interest as so obviously strong as to clearly trump any religious objection. The Lee language is stronger support for a commercial-activity-excluded objection than the Piggie Park language, I think. But the Court in Lee ultimately still applied strict scrutiny, and it seems to me that the application of heightened scrutiny to commercial for-profit activity - the sale of one's labor - in Sherbert, Thomas, and the like suggests that religious exemption regimes extend to people's for-profit activities as well as their nonprofit activities. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
