I know it is shifting the focus of the discussion, but one way to think about the broader issue here is to ask if there is a way to protect the religious liberty of Catholic institutions that do not want to subsidize coverage for prescription contraceptives in the health plans they provide to their employees and also make sure that women employees receive equal prescription drug coverage.
Government might be able to play a more positive role here in addition to or as an alternative to a finding of gender discrimination. Alan Brownstein -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter Sent: Monday, August 17, 2009 1:31 PM To: religionlaw@lists.ucla.edu Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Cpngress enacted the PDA because pregnancy uniquely burdens women in the workplace. As I noted earlier, that still leaves the question of whether preventing the burden of pregnancy falls within the intended scope of the PDA, but answering that question does not hinge whether men can use contraceptives, prescription or otherwise. 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 Perry Dane <d...@crab.rutgers.edu>: > 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 > ******************************************************* > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly > or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
