Michael Masinter also argues that Belmont Abbey
may have difficulty demonstrating that the resolution of that claim
in favor of plaintiffs substantially
burdens the free exercise of religion
because an
individual female employee makes the choice to purchase birth
control pills, and whether she does so with the proceeds of her
employer paid salary or her employer paid prescription drug benefits,
she is doing so with funds traceable to her employer, who does not
condition employment on refusing to use birth control or on refusing
to pay for birth control with funds that are proceeds of employment
This is essentially the old argument that "money is
fungible." But there are two problems here. First, law and practice
are full of instances in which this sort of argument doesn't
govern. Cf. much of establishment clause doctrine. Or consider the
fact that my school will not reimburse me out of state funds for
buying alcohol at business meals, but has no problem if I use part of
my salary to buy alcohol at such meals, and even (I am told) has no
problem reimbursing me out of gift funds.
More to the point: Belmont Abbey clearly thinks that there
is a religiously significant difference between directly and
indirectly paying for contraception. And our doctrine of religious
liberty strongly insists that we not second-guess such judgments, as
long as they are sincere. Michael's argument sort of reminds me of
someone telling an observant Jew that it must be OK to turn on an
electric light on the Sabbath because, after all, that's not
"work." Lots of religious beliefs and doctrines follow forms of
logic, and make fine distinctions, that don't necessarily convince outsiders.
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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