RE: "Patently Frivolous" and discrimination

[Volokh, Eugene]

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
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Sex discrimination and objections to apparently abortifacent contraceptives

[Volokh, Eugene]

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
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Re: "Patently Frivolous" and discrimination

[James Oleske]

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  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 
> wrote:
>
> 

RE: The ability to practice one's religion

[Friedman, Howard M.]

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


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Religion-based unit veto by commercial, for-profit, corporate employers

[Steven Jamar]

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


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RE: Contraception Mandate

[Alan Brownstein]

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, 

RE: Response to Tom Berg (and others)

[Alan Brownstein]

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 explain

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Richard Dougherty]

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  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
>
>
>
>
>
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RE: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Douglas Laycock]

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"  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."  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 g

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

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"  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."  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.edu
>> SSRN: http://ssrn.com/author='261564
>> Weblog: http://www.mirrorofjustice.blogs.com
>> 

RE: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Douglas Laycock]

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."  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.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 invol

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

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."  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.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 persu

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

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  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  
> 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  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, an

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[James Oleske]

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 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  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@lis

RE: Response to Tom Berg (and others)

[Paul Horwitz]

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  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?"




  ___
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RE: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Berg, Thomas C.]

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.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 com

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Scarberry, Mark]

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
___
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Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Scarberry, Mark]

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 
Date: 11/27/2013 8:14 AM (GMT-08:00)
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 
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 
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, 
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
   



-Original Message-
From: Volokh, Eugene mailto:vol...@law.ucla.edu>>
To: Law & Religion issues for Law Academics 
mailto:religionla

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

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  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  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  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,  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 R

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marci Hamilton]

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  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  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,  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 +
>>

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Marty Lederman]

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  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 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,  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)?

RE: The ability to practice one's religion

[Conkle, Daniel O.]

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
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Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Ira Lupu]

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  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,  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
>>     
>> 
>>
>>
>>
>> -Original Message-
>> From: Volokh, Eugene 
>> To: Law & Religion issues for Law Academics 
>> 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-profi

Re: Response to Tom Berg (and others)

[Ira Lupu]

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  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" 
> 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

Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")

[Michael Worley]

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,  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
>     
> 
>
>
>
> -Original Message-
> From: Volokh, Eugene 
> To: Law & Religion issues for Law Academics 
> 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]
> *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 

Re: Response to Tom Berg (and others)

[Paul Horwitz]

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"  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 rej

Discrimination under Title VII and RFRA (was "Patently Frivolous")

[hamilton02]

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





-Original Message-
From: Volokh, Eugene 
To: Law & Religion issues for Law Academics 
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] 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  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 whic

Response to Tom Berg (and others)

[Nelson Tebbe]

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 so

Re: Rights of corporations and RFRAs

[Marty Lederman]

Not yet determined.  Almost certainly on the March argument calendar.


On Wed, Nov 27, 2013 at 9:06 AM, Marc Stern  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
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>
>
> ___
> To post, send message to Religionlaw@lists.ucla.edu To subscribe,
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> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
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RE: The ability to practice one's religion

[Marc Stern]

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
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RE: Rights of corporations and RFRAs

[Marc Stern]

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


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