This point might have been made by someone else already, but
I'll venture ahead anyway:
I'm not sure we need to accept the premise that Belmont
Abbey is guilty of sex discrimination here. The EEOC determination
found that "By denying prescription contraception drugs, Respondent
(the college) is discriminating based on gender because only females
take oral prescription contraceptives" "By denying coverage, men are
not affected, only women." The obvious analogy implicit here is to
the sort of pregnancy discrimination at issue in Gilbert, which
Congress has (rightly) determined to be a form of sex discrimination.
But this case is different. Belmont Abbey can credibly
argue that its policy would be to refuse to pay for any
contraceptive, regardless of whether the contraceptive is being taken
by men or women. That this policy affects men and women is not the
product of biology, as it was in Gilbert, but of independent policy
decisions made by other institutions to treat women's contraceptives,
but not men's contraceptives, as prescription items.
To put it another way: When General Electric argued in the
Gilbert case that it was discriminating against pregnancy, not
against women, that would rightly strike most observers as a
laughable, or at least unduly formalistic, proposition. But when
Belmont Abbey argues that it is discriminating against contraception,
not against women, that seems to me to be neither laughable nor formalistic.
Consider this analogy: Imagine a pacifist landlord who
refuses to rent to "combat soldiers." Is that a form of
discrimination against men merely because another institution (the
U.S. Congress) has made an independent policy decision not to allow
women to be combat soldiers? (For purposes of the hypo, put aside
the fact that many women do de facto serve in combat.)
Or imagine a landlord right next to a single-sex college who
refuses to rent to "college students." Is that a form of sex
discrimination merely because the college has, of its own accord and
as its right, chosen to be single-sex?
Now, these situations might, I guess, set up some sort of
"disparate impact" claim, but that seems to me to require a more
complicated analysis; in Bemont Abbey's case, it might leave more
room for the operation of religious conscience or RFRA.
Perry
*******************************************************
Perry Dane
Professor of Law
Rutgers University
School of Law -- Camden
217 North Fifth Street
Camden, NJ 08102
d...@crab.rutgers.edu
Bio: www.camlaw.rutgers.edu/bio/925/
SSRN Author page: www.ssrn.com/author=48596
Academia.edu page: http://rutgers.academia.edu/PerryDane
Work: (856) 225-6004
Fax: (856) 969-7924
Home: (610) 896-5702
*******************************************************
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