Re Sandy's queries about how the employment discrimination laws work: Title VII applies only to employers with 15 or more employees. State-law equivalents apply to much smaller employers -- to employers with only one employee in some states, somewhat more in others, but well under 15 nearly everywhere.
No law prohibits political discrimination by private employers, except in DC and maybe a few other places I don't know about. But I think not very many,. On Sun, 30 Sep 2012 16:29:10 -0500 Sanford Levinson <slevin...@law.utexas.edu> wrote: >I the entailment of Doug's position that "very small businesses" should be >allowed to refuse to hire employees on the basis of their disapproval of any >aspect of the employee's behavior? I realize this follows from classic >employee-at-will doctrine, and I suspect (I don't teach in the field, so I >simply don't know, I'm embarrassed to say) that Title VII might not apply to >"very small businesses." But, obviously, that exception is overly broad if >we're trying to protect the very small subset of very small businesses run by >idiosyncratic religious people. A generalized exception, obviously, could >protect me in my refusal to hire any Republicans, etc..... (I apologize if >this question is unsophisticated given the realities of exceptions to >employment law.) > >sandy > >-----Original Message----- >From: religionlaw-boun...@lists.ucla.edu >[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock >Sent: Sunday, September 30, 2012 4:16 PM >To: Law & Religion issues for Law Academics >Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate > >My explanation was not that the judges are rooting for the government, >although sometimes they are. My explanation was that a finding of no burden >"makes hard cases go away." > >These cases involve direct regulation of religiously motivated behavior. The >Court's point in Bowen and Lyng was that there was no regulation of the >plaintiff's behavior at all. So the direct/indirect point has no purchase here. > >It is not at all clear to me that large commercial business should win these >cases. That is partly because of government interests of the sort marci >mentions, and partly because the connection to religious exercise becomes >increasingly attenuated as the business grows, and especially as the number of >owners increases. But religious institutions should win these cases, and >probably very small businesses that are personal extensions of the individual >owner. > > > >On Sun, 30 Sep 2012 14:26:07 -0400 (EDT) hamilto...@aol.com wrote: >>The references to Barnett and Yoder are misplaced. This case is closer to >>Bowen, Lee, and Lyng than to either of those cases. >>In fact, Bowen, Lee, and Lyng cases are stronger for the believer, >>because the burden found to be insufficient in those cases is direct rather >>than indirect. >> >> >>The notion that courts don't find "substantial burden," because they >>are rooting for the government, which is Doug's explanation, is >>insupportable. "Substantial burden" is a legal term of art, not a measure of >>how the believer feels about the burden. The burden here is incidental to >>their religious beliefs, not direct or substantial. >> >> >>But let's look at this issue from a broader perspective. Do those favoring >>the employee here favor the following arguments as well? >> >> >>Jehovahs Witness business owner should not have to pay for coverage of >>blood transfusions Scientology business owner should not have to pay >>for coverage of mental health benefits LDS business owner should not >>have to pay for coverage for treatments that include caffeine >>Evangelical or Catholic business owner should not have to pay for >>coverage of MS treatments derived from embryonic stem cell research >> >> >>There is no principled way to distinguish these demands from the demands made >>in this case. >> >> >>I also would point out that Title VII forbids business owners from >>discriminating on the basis of religion. Granting the business owner >>the right to tailor medical care to his or her religious beliefs strikes me >>as an end run around that principle. The work place is supposed >>to be neutral as to religion. When the employer can tailor benefits to >>fit religious viewpoint, he or she is gerrymandering the employment >>market so that conservative Catholics are going to be more likely to >>want to work for conservative Catholics and non-Catholics are going to be >>more inclined to avoid conservative Catholic employers. Can businesses >>create an employment universe where their owners impose their religious >>beliefs on the terms of employment consistent with Title VII? >> >> >>Marci >> >> >> >> >> >> >> >>Marci A. Hamilton >>Paul R. Verkuil Chair in Public Law >>Benjamin N. Cardozo School of Law >>Yeshiva University >>55 Fifth Avenue >>New York, NY 10003 >>(212) 790-0215 >>hamilto...@aol.com >> >> >> >> >>-----Original Message----- >>From: Marc DeGirolami <marc.degirol...@stjohns.edu> >>To: Law & Religion issues for Law Academics >><religionlaw@lists.ucla.edu> >>Sent: Sun, Sep 30, 2012 1:38 pm >>Subject: RE: Court Rejects Religious Liberty Challenges To ACA Mandate >> >> >> >>I wonder what sort of evidence Marty is looking for. What arguments qualify >>as “serious” arguments? And “serious” for whom? A “serious” argument is not >>necessarily an argument that one finds persuasive, though that might be the >>standard. It could instead be an argument that one disagrees with but that >>one finds plausible. Or perhaps not outrageous. Or is it instead one which >>the religious claimant takes “seriously,” even if the court does not? How >>should one measure the standard for seriousness? >> >>The standard that RFRA sets is not whether a court believes that the argument >>raised by the objecting religious claimant is “serious.” It is whether the >>claimant has alleged a substantial burden. Alleging a substantial burden >>does not require that the court gauge the seriousness of the objector, or his >>or her objection, or the degree to which the argument has achieved >>theological consensus, or its importance or centrality within the overarching >>system of belief. It does not demand the assent of a selection of >>theologians. After all, other theologians, at other conferences, surely >>would disagree with the conclusions of the theologians at Marty’s conference, >>but I take it that their feelings are also not the gauge by which we measure >>whether a burden is substantial. >> >>One possibility is to demand some sort of pain threshold, as the Missouri >>court intimates, going so far as to suggest (in what I believe is a >>misreading of Wisconsin v. Yoder) that suffering a substantial burden may >>even require a willingness to suffer criminal prosecution. Putting aside the >>objection that there is of course a difference between a necessary condition >>and a sufficient condition, would the argument become a “serious” argument if >>the owner of the company would prefer to be prosecuted rather than to comply? >> Or to prefer to pay a fine? Or does the “seriousness” of the argument not >>depend at all on the degree of suffering that the claimant is willing to >>endure? >> >>Marc >> >> >>From: religionlaw-boun...@lists.ucla.edu >>[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman >>Sent: Sunday, September 30, 2012 12:57 PM >>To: Law & Religion issues for Law Academics >>Subject: Re: Court Rejects Religious Liberty Challenges To ACA Mandate >> >> >>My post bounced, apparently because of the number of recipients! Resending >>without so many cc's. Sorry for any duplicate receipts. >> >>On Sun, Sep 30, 2012 at 12:52 PM, Marty Lederman <lederman.ma...@gmail.com> >>wrote: >>For what it's worth, at our Georgetown Conference on this issue last week (a >>video of which should be posted soon), there appeared to be a great deal of >>skepticism among the Catholic theologians and other scholars present (some of >>whom I am copying here, along with some others at the conference) that where >>an employer provides employees with access to a health-insurance plan on >>compulsion of law; the services in question are part of the plan virtue of >>legal mandate; and the use of the plan to pay for any particular heath care >>service is entirely within the discretion of the employee and her physician, >>the employer does not thereby engage in material cooperation with evil just >>because some employees might choose to use the plan (unbeknownst to the >>employer) to subsidize the use of contraception. >> >>I am hardly an expert in such questions of Catholic doctrine; but I, for one, >>have yet to see any serious argument from those objecting to the Rule that >>compliance would result in a violation of religious obligations on account of >>such "cooperation." That doesn't mean there is no such argument out there, >>of course. But I think it helps to explain in part why plaintiffs in most of >>these cases have thus far not articulated a theory of substantial burden >>based on cooperation-with-evil, and why some courts are so skeptical of the >>allegation of a substantial burden -- namely, that such arguments appear to >>prove far too much w/r/t an employer who does not raise a similar objection >>to the inevitable use of its salary payments and taxes (via the intervention >>of genuinely independent choice on the part of the state or other private >>parties) for numerous forms of conduct that the employer deems to be wrongful. >> >>Doug (and others): I would be extremely grateful for any citations to Jewish >>or other non-Catholic treatments of this issue of cooperation with evil, >>thanks. >> >>Mark S.: You appear to place a good deal of stress on the fact that >>contraception is "specifically" mentioned in the health-insurance plans >>in question, whereas of course it is not "specifically" mentioned in >>the laws requiring employers to pay taxes and salaries, even though >>everyone knows that such taxes and salaries will be used in part to pay >>for contraception. What difference does that specification make from a >>Catholic moral perspective? To the extent you're suggesting that the >>inclusion of the words "contraceptive services" in the insurance plan >>might be understood by some observers to suggest the employer's own >>endorsement of contraception, I think that is unlikely: After all, who >>reasonably thinks that any employer approves of all the myriad >>health-care services included in a health-insurance plan? But in any >>event, an employer concerned about the prospect of such mistakenly >>attributed endorsement can tell its employees in no uncertain terms >>that the inclusion > of >>contraception in the plan is required by law, and that the employer is >>morally opposed to such services and "specifically" discourages their use. >> >> >> >>On Sun, Sep 30, 2012 at 11:56 AM, Douglas Laycock <dlayc...@virginia.edu> >>wrote: >>Mark references a long tradition of religious thought about cooperation with >>evil, and how close is too close -- a tradition that is found in both >>Christian and Jewish teachings (and probably other faiths too, but I know >>less about those). >> >>This tradition was probably not explained to the court. It may or may not >>have made any difference. Judges have been attracted to no-burden holdings >>since RFRA was enacted, I think because it seems to make a hard case go away. >>They don't have to limit the reach of the government's program, they don't >>announce that some modest government interest is actually compelling, and >>they don't have to admit that they are letting the government trample on >>someone's religion. >> >>Intense believers in these cases are often represented by intensely believing >>attorneys, and they too often treat the burden on religion as obvious, and do >>a lousy job of developing the issue. I don't know if that happened here, but >>I suspect that it did, and of course I don't know whether it would have >>mattered. >> >>A substantial secular business as plaintiff likely affected the initial >>judicial reaction to this case. But the reasoning appears to be equally >>applicable to religious non-profits controlled by bishops or other religious >>authorities. >> >> >> >>On Sat, 29 Sep 2012 22:36:44 -0700 >> "Scarberry, Mark" <mark.scarbe...@pepperdine.edu> wrote: >> >>>Of course there is a long history of careful, thoughtful moral analysis that >>>treats the directness of a person's involvement in an action as a key >>>indicator of the person's moral responsibility for it. It is not >>>idiosyncratic at all for the employer to believe that he or she is being >>>coerced into violating religious conscience by being required specifically >>>to subsidize an activity that he or she believes is wrong, and, even worse, >>>by being required to agree specifically to subsidize that activity by >>>entering into a contract providing for it to be subsidized. >> >>Douglas Laycock >>Robert E. Scott Distinguished Professor of Law University of Virginia >>Law School >>580 Massie Road >>Charlottesville, VA 22903 >> 434-243-8546 >> >>_______________________________________________ >>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. >> >> >> > >Douglas Laycock >Robert E. Scott Distinguished Professor of Law University of Virginia Law >School >580 Massie Road >Charlottesville, VA 22903 > 434-243-8546 >_______________________________________________ >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. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 _______________________________________________ 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.
