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.net<mailto: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<mailto: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<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<mailto:vol...@law.ucla.edu>> To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu<mailto: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.edu> [mailto: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<mailto:vol...@law.ucla.edu>> wrote: I appreciate the point, but when the Court confronted the issue more squarely, in Bob Jones, it didn’t treat the university’s claim as patently frivolous, but did apply strict scrutiny (though upholding the law, of course). Likewise, the 1990s lower court cases involving marital status discrimination in housing, some of which granted exemptions under state constitutions or RFRAs and some of which denied them, didn’t treat them as frivolous. So it seems to me the notion that religious exemption claims can be brought by people running for-profit businesses is pretty well-established in lower courts, and not foreclosed by the Supreme Court. And the notion that this would apply even when the businesses are organized as corporations hardly seems frivolous to me, either. Eugene James Oleske writes: That is how the Supreme Court described the contention of a restaurant owner who claimed that 1964 Civil Rights Act "constitute[d] an interference with the free exercise of [his] religion." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 n.5. Although the restaurant owner's religion compelled him "to oppose any integration of the races whatever," 256 F. Supp. 941, 944 (D.S.C. 1966), and although the 1964 Civil Rights Act required him to serve all races in his restaurants, the Court characterized the argument as frivolous without engaging in any balancing of burdens and interests. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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<mailto: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. -- Michael Worley BYU Law School, Class of 2014 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto: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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
