Tom--
The employer is insisting that employees accept benefit plans tailored to his religious beliefs, even though they accepted employment, which under federal law prohibits the employer from discriminating on the basis of religion (or gender). Amos is irrelevant as a religious organization has an exemption that a for-profit corporation does not have under 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 http://sol-reform.com -----Original Message----- From: Berg, Thomas C. <tcb...@stthomas.edu> To: religionlaw <religionlaw@lists.ucla.edu> Sent: Tue, Nov 26, 2013 5:27 pm Subject: RE: Contraception Mandate Thanks, Nelson. This is an interesting piece, and I respect the arguments on both sides. But I have a couple of critical reactions: 1. I wonder whether it's really helpful or effective to start by dismissing an argument as something "off the wall" that somehow, inexplicably, has gone mainstream. The judges on both sides of this issue have advanced serious arguments, and I'm more inclined to concentrate on their merits. Which you ultimately do (at least on some of the issues): so for me, at least, the "it's radical" pitch seemed simply to be preaching to the choir. 2. The meat of your argument that for-profit corporations cannot exercise religion is that allowing their claims would raise Establishment Clause problems because of effects on employees. But to me your argument here seems wrong, or at least far from clear. For one thing, even if the Establishment Clause does play a role here, that may be a reason why wecan countenance certain free exercise claims by for-profit corporations. If the Establishment Clause is available to limit the overreach of claims based on religious conscience—a unique limit on such claims and not on others—isn’t that a reason to bemore confident that in this context society would reach an accommodation that takes both important interests seriously? Moreover, you say that the fact that an exemption imposes costs on third parties is sufficient reason in itself to invalidate it under the Supreme Court's cases. But that is not the law. The Title VII exemption upheld unanimously in Amos could have been said to impose costs on employees. But as Justice Brennan later explained in the Texas Monthly case, the exemption was upheld, "though it had some adverse effect on those holding or seeking employment with those organizations (if not on taxpayers generally), [because it] prevented potentially serious encroachments on protected religious freedoms." 489 U.S. at 18 n.8. The Court treats third-party effects as something to be weighed against the seriousness of the “encroachment on religious freedom”—an approach that makes sense, given that pretty much any employment regulation, and therefore any exemption from it, could be said to affect third parties. Your position, on the other hand, appears to be that "effect on third parties" is a reason to declare that no encroachment on religious freedom exists. If that is so, how can there be accommodations for religious organizations? Second, you quote Thornton v. Caldor's statement that “[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities” (a principle that you say "matters here in a particularly powerful way"). Now, I understand and am actually rather sympathetic to the idea that the contraception mandate increases the ability of women employees with modest incomes to afford contraception. But your phrasing does immediately trigger the response that the objecting employer is not, in fact, insisting that the employees “must conform their conduct to his own religious necessities.” The employer is not insisting that employees refrain from using contraception, or from obtaining it by means other than the insurance coverage. (In Thornton v. Caldor, note, the Connecticut law did actually require others to do something: the employer had to give the employee his Sabbath off, indeed without qualification or exception.) There are significant questions here about the baselines from which we determine or measure “effects on others”: who is burdening whom, and which effect is more serious on the whole, in quality or quantity? I acknowledge that there are also line-drawing issues that would arise were Hobby Lobby to win (the Jehovah’s Witness example that Marci raises, for example). But I don’t think those questions are answered simply by invoking the fact that exempting certain employers has some effect on employees as compared with regulating those employers. ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ---------------------------------------------------------------------------- -----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Nelson Tebbe Sent: Tuesday, November 26, 2013 2:36 PM To: religionlaw@lists.ucla.edu Subject: Contraception Mandate Here's a Slate piece that I wrote with Micah Schwartzman (Virginia), commenting on today's cert. grant. We emphasize three differences between these cases and Citizens United, including the significant Establishment Clause ramifications of ruling in favor of the corporations here. We link to important work by Fred Gedicks developing the nonestablishment argument. http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/obamacare_birth_control_mandate_lawsuit_how_a_radical_argument_went_mainstream.html Nelson Tebbe _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, seehttp://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.
