This isn't lunch-- it is medical treatment for women. (Contraceptive meds may work against some Catholics' beliefs but they are often taken for non-contraceptive reasons, so the contraception label for this is religio-centric).
And women have a civil right against these employers not to be discriminated against on gender or religion. A benefit plan that carves out medical treatment based on the employer's religious beliefs and that only applies to women is discriminatory. Let's say that the employer believes that all women should have their heads covered because of religious belief . Again, discrimination based on religion and gender in violation of Title VII. Or how about an employer who believes women belong in the home taking care of their kids, and therefore scales salary to deincentivize women and drive them from the workplace. ( the answer that these employers wouldn't hire women is a factual dodge, that avoids the legal issue). Same problem Or let's say that a religious company owner learns that an employee had an abortion (which is consistent w her religious beliefs) and fires her for doing what he believes is murder. Discrimination on religion and gender. In each of these cases I think the govt has a compelling interest in protecting women against such discrimination in these workplaces and that there is no less restrictive means than requiring cos covered by Title VII to cover women's health care, period. Given that the woman makes an intervening choice whether to use it, burden on the employer is de minimis. (I know that there is a claim that the very payment for the plan that includes contraception violates beliefs but the question is LRM and this is it) Brad throws in a red herring -- the believer need not choose to have a for-profit company with over 50 employees. Heading up a nonprofit or a smaller company escapes these civil rights. There is no constitutional right to make money and engage in gender and religious discrimination. Having said all that, the problem here is really RFRA, but I have written extensively on its shortcomings and won't belabor the point here. Marci Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Nov 26, 2013, at 5:52 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: > I don’t see that at all. Say the government requires > employers to buy lunch for their employees, and a religiously vegetarian > employer orders only vegetarian food. I don’t think that somehow constitutes > the employer discriminating based on religion against people who don’t share > his beliefs. > > Now say that the government requires employers to buy lunch > for their employees, and include meat (since that’s what the government sees > as part of a healthy, balanced lunch), but has an exemption for religious > employers. I don’t think that would somehow violate the Establishment > Clause, on a Thornton theory. Unlike in Thornton, the exemption wouldn’t > impose any legal coercion on an objecting nonbeliever, by “giv[ing] the force > of law” to a believer’s action (Amos’s explanation of Thornton). It would > simply -- like in Amos or in Cutter, which are indeed relevant for purposes > of understanding the boundaries of Thornton -- exempt the employer from a > government-imposed requirement, and indeed a requirement that (more so than > in Amos) involves a government-imposed burden on the employer’s religious > practice. That the employees no longer get a government-mandated benefit > does not make the exemption unconstitutional. > > So I don’t think there’s an Establishment Clause problem with > such exemptions, and likewise there wouldn’t be with any such exemption > recognized under RFRA. To be sure, this doesn’t tell us whether the > exemption should still be denied, on the theory that the denial is necessary > to serve a compelling government interest. But that’s a separate question > from whether the exemption would be outright unconstitutional. > > Eugene > > Marci wrote: > > 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). > _______________________________________________ > 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.
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