Howard Friedman is correct that the USCCB has extended its concerns to secular employers, who could not take advantage of the Title VII provision permitting religious entities to hire only co-religionists (and then to fire sinners). So the mandate is less easily avoidable for secular employers. Two thoughts:
1. Secular employers with 50+ employees are in a highly regulated activity (the employment relation). If any of them cannot in good religious conscience comply with secular regulations (no race or gender discrimination; wages and hours; OSHA; health insurance mandate), perhaps they should transfer their assets to a different form of economic activity. That is a different form of avoidability of the regulations (and one that does not require surrender of a "religious mission"). 2. If secular employers raise a RFRA claim against the contraceptive coverage mandate, shouldn't they be subject to inquiry into the sincerity of their beliefs -- i.e., the extent to which they have complied in their own lives with the teachings about contraception? On Mon, Feb 13, 2012 at 9:15 AM, Friedman, Howard M. < howard.fried...@utoledo.edu> wrote: > ** > > The US Conference of Catholic Bishops in responding to the modified policy > seems to believe that protections should go beyond religious entities and > should cover secular employers and individuals with moral objections as > well. They said ( http://usccb.org/news/2012/12-026.cfm ): > > **the lack of clear protection for key stakeholders—for self-insured > religious employers; for religious and secular for-profit employers; for > secular non-profit employers; for religious insurers; and for > individuals—is unacceptable and must be corrected.** > > Is the religious liberty problem here an inevitable function of a system > that relies on employer-based health insurance coverage? Or would coverage > of similar services by Medicaid that is supported by taxpayers more broadly > an equal problem? > > Howard Friedman > > > -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu on behalf of Ira Lupu > Sent: Mon 2/13/2012 8:49 AM > To: Marc DeGirolami > Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law & Religion issues for Law > Academics; Con Law Prof list > Subject: Re: Contraceptives and gender discrimination > > On the burden question -- Religious entities may limit hiring to > co-religionists, and then make their best efforts to enforce religious > norms against employees. Doesn't that option make the burden of the HHS > policy far less substantial? > > I think a common reaction to the religious liberty claim being advanced > here is its leveraging effect on employees who are not of the faith. So > even if some faiths have a religious mission to serve others, do they > similarly have a religious mission to employ others? Or is it their > religious mission to impede access to contraception by all, whether or not > of the faith? If it's the latter, I don't know why their position is any > different from or stronger than taxpayers who don't want to to support what > they see as immoral activity by their government. > > On Sun, Feb 12, 2012 at 9:51 PM, Marc DeGirolami < > marc.degirol...@stjohns.edu> wrote: > > > Before one gets to how compelling the state's interest is, one needs to > > make a judgment under RFRA about whether the burden is "substantial." > > > > Like Kevin, I'd also like to know how supporters of the mandate would > > characterize this burden as incidental, as opposed to "substantial," as > the > > latter term is used in the RFRA. In the face of a claimant's sincere > > argument (if we may stipulate to sincerity) that the burden of complying > > with a regulatory scheme which coerces it to purchase a health plan that > > covers products and services as to which it has a conscientious objection > > is substantial (I am assuming that the alteration announced by the > > President on Friday retains this basic structure, though I am uncertain > > about that), what are the arguments that would be advanced to support the > > case for the burden's non-substantiality? Would supporters of the > mandate > > rely on an understanding of Catholic theology? Would they claim that > those > > who object have not understood well their commitments to the doctrine of > > "cooperation with evil" -- or some other religious doctrine -- and that > > courts are in a strong position to assess wh! > > ich rival understanding is the most plausible? RFRA, as amended by > > RLUIPA, forecloses an inquiry into the "centrality" of a particular > belief > > or practice within a belief system as a means of determining the > > substantiality of the burden imposed on the claimant. What would a court > > rely on to conclude that, notwithstanding the sincere testimony of the > > claimant about the burden's substantiality, the burden was actually > > incidental? > > > > Marc DeGirolami > > > > -----Original Message----- > > From: conlawprof-boun...@lists.ucla.edu [mailto: > > conlawprof-boun...@lists.ucla.edu] On Behalf Of Walsh, Kevin > > Sent: Sunday, February 12, 2012 9:11 PM > > To: Zietlow, Rebecca E.; Richard Dougherty; Marci Hamilton > > Cc: Con Law Prof list > > Subject: RE: Contraceptives and gender discrimination > > > > Suppose one accepts the argument about incidental burdens. What about the > > RFRA's "least restrictive means" requirement? See 42 U.S.C. > 2000bb-1(b)(2). > > Do supporters of the contraceptives mandate concede that it cannot > satisfy > > this part of the RFRA and fall back on the no-substantial-burden > argument? > > If so, how does that argument go? Or is there instead an argument that > > forcing private employers with religious objections to offer a policy for > > "free" contraceptives is the _least restrictive means_ of providing > access > > to low-cost contraceptives? > > > > Kevin Walsh > > ________________________________________ > > From: conlawprof-boun...@lists.ucla.edu [ > conlawprof-boun...@lists.ucla.edu] > > On Behalf Of Zietlow, Rebecca E. [rebecca.ziet...@utoledo.edu] > > Sent: Sunday, February 12, 2012 8:52 PM > > To: Richard Dougherty; Marci Hamilton > > Cc: Con Law Prof list > > Subject: RE: Contraceptives and gender discrimination > > > > No one is denying a constitutional right to birth control to women. Lack > > of access to insurance for birth control may effectively bar low income > > women who work for Catholic run institutions from obtaining birth > control. > > However, as we all know, the government has no affirmative obligation to > > subsidize the exercise of any constitutional right. My point was simply > > that enabling those women to have effective access to birth control is a > > strong enough government interest to justify any incidental burden on > > Catholic run institutions imposed by the Obama policy. And, that this is > > an issue that uniquely affects women. > > > > And yes, birth control is often prescribed for reasons other than > > contraception, to treat medical conditions including hormonal imbalances > > etc. > > > > Rebecca Zietlow > > > > > > ________________________________ > > From: Richard Dougherty [dou...@udallas.edu] > > Sent: Sunday, February 12, 2012 8:40 PM > > To: Marci Hamilton > > Cc: Zietlow, Rebecca E.; Con Law Prof list > > Subject: Re: Contraceptives and gender discrimination > > > > Perhaps I am missing something major here. Is someone denying women > their > > constitutional right to purchase birth control? Isn't the only question > > here whether women -- or spouses of men -- working for Catholic > > organizations, can get it for "free"? (Of course it won't be free for > > anyone, as everyone will be paying higher premiums; insurance companies > > aren't in the charity business.) > > > > Prof. Zietlow I think hit upon a very important aspect of this question. > > When Viagra was invented/discovered/popularized, and it got insurance > > coverage, that did prompt states to pass their requirement for birth > > control coverage. But one (not me) might argue that there was a medical > > disability that argued in favor of coverage (is ED covered under the ADA? > > I honestly don't know). I'm not aware of the comparable argument for > > birth control, but I am willing to be educated on it. > > > > Richard Dougherty > > On Sun, Feb 12, 2012 at 6:51 PM, Marci Hamilton <hamilto...@aol.com > > <mailto:hamilto...@aol.com <hamilto...@aol.com>>> wrote: > > Rebecca and Lauren are correct. The bishops are also opposed to > > constitutional rights for women and privacy rights generally. This is > just > > another plank in their platform on these issues. It is worthwhile to > keep > > in mind that this scenario involves constitutional interests on both > sides > > at every level and there is a great deal at stake for women generally. > To > > treat the organization's religious claims as though they are the only > ones > > to analyze is a gross oversimplification > > > > Marci > > > > > > On Feb 12, 2012, at 7:23 PM, "Zietlow, Rebecca E." < > > rebecca.ziet...@utoledo.edu<mailto:rebecca.ziet...@utoledo.edu<rebecca.ziet...@utoledo.edu>>> > wrote: > > > > I agree with Lauren that there is a gender equality issue here. I > > understand that in 2000, the EEOC agreed as well, and issued a ruling > that > > employers who provide insurance coverage for Viagra but deny coverage for > > birth control violate Title VII. The Con law issue is that apparently > the > > Catholic church challenged this application of Title VII on free exercise > > grounds and lost in a couple of lower court rulings. The only thing > > different now is that the Catholic employers are being required to pay > for > > coverage, but I think Obama took care of that issue with the policy > > modification on Friday (others may disagree). > > > > This whole scenario has striong implications for women's rights, > including > > both sex equality concerns and the constitutional right to use birth > > control. Wouldn't the government's interest in protecting those rights > be > > sufficiently strong to justify the Obama policy if it was challenged by > the > > Catholic church as violating the FE Clause? > > > > Rebecca Zietlow > > ________ > > _______________________________________________ > > To post, send message to conlawp...@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > > > 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 conlawp...@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof > > > > 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. > > > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > > _______________________________________________ > 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. > -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
