I don't see what Belmont Abbey's status under one statute necessarily has to do with its status under another, especially one as general as RFRA. What I think you are obliquely saying is that Belmont Abbey is not a "person" under RFRA, on the grounds that RFRA doesn't apply to institutional "persons" unless some context--determinable with reference to some other law--suggests that it might be. That's a fair enough argument, which I think others on this list can address better than I can based on the RFRA case law, but in any event it should be addressed on its own merits. I also take your point about Belmont Abbey's other conduct being potentially inconsistent with its position on its insurance benefit (though I don't think the notion that paying its employees fungible money constitutes a concession to their ability to obtain contraception carries much weight). Vance
On Sun, Aug 16, 2009 at 6:08 PM, Michael R. Masinter <masin...@nova.edu>wrote: > Belmont Abbey might have a better chance with its RFRA argument if it were > a religious institution entitled by section 702(a) of Title VII to practice > religious discrimination, and if as such an employer, it conditioned > employment on foregoing the use of birth control as an expression of > religious faith or obedience. But as I understand what I have read of the > EEOC proceedings, Belmont Abbey does not limit employment to those whom it > defines as the faithful, does not require of its employees that they refrain > from using birth control, and may not even be entitled to claim the 702(a) > exemption authorizing religious discrimination. It already pays employees > money with which they are free to purchase (or not purchase) birth control; > it offers them prescription drug coverage as an additional employee benefit, > which, like money, they are free to use to purchase (or not purchase) birth > control. If Belmont Abbey is forbidden from practicing religious > discrimination, then it's hard to make the argument that under RFRA it is > entitled to practice sex discrimination. I would think its best argument is > the question which has divided the few courts that have considered it, and > that is the question of whether denying coverage for prescription birth > control pills is sex discrimination. > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University 954.262.6151 (voice) > masin...@nova.edu 954.262.3835 (fax) > > > Quoting "Vance R. Koven" <vrko...@gmail.com>: > > So for purposes of the law-n-religion analysis, the issue is whether >> Belmont >> Abbey can claim, either under the constitution or RFRA (this being a >> Federal >> matter), that it is entitled to a religious exception. Sticking with RFRA >> to >> avoid the complexities of post-Smith analysis, the government would have >> to >> contend that the prevention of sex discrimination is a compelling interest >> (which for sake of discussion I'm willing to concede). Belmont Abbey would >> then have to respond that since PDA requires coverage for contraception >> *irrespective* of actual sex discrimination as normally understood, the >> failure to provide such coverage on a nondiscriminatory basis (that is, >> because men are equally prevented from obtaining reproductive-health >> benefits--putting aside whether it could "offset" the women-only benefit >> denial with a *different* men-only denial--that would conflict with >> Catholic >> doctrine) makes the PDA proscription merely malum prohibitum and not malum >> in se, which parries the "compelling interest" alleged? If that's so, then >> the government could go back and attempt a standard sex-discrimination >> analysis of the matter without the benefit of the PDA presumption. >> Vance >> >> On Sat, Aug 15, 2009 at 5:51 PM, Michael R. Masinter <masin...@nova.edu >> >wrote: >> >> The PDA makes denial of health insurance benefits relating to pregnancy >>> sex >>> discrimination without regard to whether an employer denies men coverage >>> for >>> some other condition that affects only men. Denying coverage for a >>> prescription drug that prevents pregnancy, a risk to which only women are >>> exposed, may therefore be sex discrimination under the PDA even if men >>> are >>> not denied coverage for vasectomies. Whether the cost of prevention of >>> pregnancy, as distinct from the health related cost of pregnancy, counts >>> as >>> one of the risks and burdens associated with pregnancy the PDA was >>> intended >>> to relieve women from bearing under employer provided health insurance >>> and >>> other employee benefit programs might better frame the question a court >>> ultimately will have to answer. >>> >>> Michael R. Masinter 3305 College Avenue >>> Professor of Law Fort Lauderdale, FL 33314 >>> Nova Southeastern University 954.262.6151 (voice) >>> masin...@nova.edu 954.262.3835 (fax) >>> >>> >>> >>> Quoting "Vance R. Koven" <vrko...@gmail.com>: >>> >>> Whatever else may be right or wrong with Gilbert or the statute, >>> Griswold >>> >>>> was a constitutional claim based on the flat prohibiting by legislation >>>> of >>>> a >>>> form of birth control for women, whereas the EEOC finding in Belmont >>>> Abbey >>>> is a matter of what the college will fund as part of its private health >>>> insurance. Presumably women are still free to obtain contraception on >>>> their >>>> own nickel. >>>> Have we ascertained that the Belmont Abbey insurance policy, and the >>>> college's internal policy, permitted men to obtain condoms and/or more >>>> medically-oriented forms of birth control (e.g. vasectomies, >>>> spermicides)? >>>> If so, then there's a live sex-discrimination issue. If not, then the >>>> EEOC >>>> decision may be subject to question. >>>> >>>> Vance >>>> >>>> On Sat, Aug 15, 2009 at 5:10 PM, Steven Jamar <stevenja...@gmail.com> >>>> wrote: >>>> >>>> I'm not sure how paul arrives at his characterization of my response to >>>> >>>>> an >>>>> inquiry of another in which I sketch a possible way a court could go >>>>> wrong. >>>>> >>>>> Nonetheless, it seems to me that even though Gilbert was overturned by >>>>> legislation, the legislation did not in fact reach the illogic of the >>>>> court's reasoning, but rather the outcome of that reasoning. >>>>> While I think that a court that would reason as I hypothesized one >>>>> might >>>>> would be wrong in doing so in light of the dialogue between the Court >>>>> and >>>>> Congress(see boumediene), I fear I have seen such toturing of laws >>>>> often >>>>> enough to not consider such error to beyond the realm of possibility. >>>>> >>>>> I guess I don't quite see how a statute based claim with EP overtones >>>>> would >>>>> impact a constitutional liberty-based privacy claim, though at times we >>>>> do >>>>> cross those sorts of boundaries. >>>>> >>>>> >>>>> Stev >>>>> >>>>> Sent from Steve Jamar's iPhone >>>>> >>>>> >>>>> On Aug 15, 2009, at 1:57 PM, Paul Finkelman <paul.finkel...@yahoo.com> >>>>> wrote: >>>>> >>>>> >>>>> _______________________________________________ >>>>> >>>>>> >>>>>> To post, send message to Religionlaw@lists.ucla.edu >>>>> To subscribe, unsubscribe, change options, or get password, see >>>>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>>>> >>>>> Please note that messages sent to this large list cannot be viewed as >>>>> private. Anyone can subscribe to the list and read messages that are >>>>> posted; people can read the Web archives; and list members can (rightly >>>>> or >>>>> wrongly) forward the messages to others. >>>>> >>>>> >>>>> >>>> >>>> -- >>>> Vance R. Koven >>>> Boston, MA USA >>>> vrko...@world.std.com >>>> >>>> >>>> >>> >>> >>> >>> _______________________________________________ >>> To post, send message to Religionlaw@lists.ucla.edu >>> To subscribe, unsubscribe, change options, or get password, see >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw >>> >>> Please note that messages sent to this large list cannot be viewed as >>> private. Anyone can subscribe to the list and read messages that are >>> posted; people can read the Web archives; and list members can (rightly >>> or >>> wrongly) forward the messages to others. >>> >>> >> >> >> -- >> Vance R. Koven >> Boston, MA USA >> vrko...@world.std.com >> >> > > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Vance R. Koven Boston, MA USA vrko...@world.std.com
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
