Right, but we're discussing constitutionality, so what Title VII doesn't say doesn't constrain my question:
Were Title VII amended to require private, for-profit schools to give food, would that be a higher "compelling interest" than the interest in contraception? On Tue, Nov 26, 2013 at 5:13 PM, Marci Hamilton <hamilto...@aol.com> wrote: > There is nothing in title VII that governs all of the companies involved > here that involves food, lunch, or children. These issues are about > adult women employees who are protected by Title VII from employers who > make religion a prerequisite to employment or who, in my view, craft > benefits and/or salaries based on religion or gender. > > Marci A. Hamilton > Verkuil Chair in Public Law > Benjamin N. Cardozo Law School > Yeshiva University > @Marci_Hamilton > > > > On Nov 26, 2013, at 6:59 PM, Michael Worley <mwor...@byulaw.net> wrote: > > Obviously, I'm not degrading the interest in contraception; I just think > saying "this isn't lunch" is a weird thing to say given the importance of > food. > > > On Tue, Nov 26, 2013 at 4:55 PM, Michael Worley <mwor...@byulaw.net>wrote: > >> Marci-- >> >> Would you think that a mandate that all (private, for-profit) schools buy >> lunch for their students be more compelling than this case? In both cases, >> the third parties can buy food or contraception outside of the >> employer/school relationship? >> You say "This isn't lunch-- it is medical treatment for women." >> In essence, which is more essential-- free food or free contraception? >> >> Michael >> >> >> On Tue, Nov 26, 2013 at 4:37 PM, Marci Hamilton <hamilto...@aol.com>wrote: >> >>> 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. >>> >>> >>> _______________________________________________ >>> 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. >>> >> >> >> >> -- >> Michael Worley >> BYU Law School, Class of 2014 >> > > > > -- > Michael Worley > BYU Law School, Class of 2014 > > _______________________________________________ > 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. > -- Michael Worley BYU Law School, Class of 2014
_______________________________________________ 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.
