I agree with Michael, but there's a deeper point here, I think.
The employers in Hobby Lobby aren't seeking an order that employees not use
contraception - they're just seeking to have employees pay it out of their own
pockets. Likewise, the employers in my hypothetical case aren't seeking an
order that employees not eat meat - they're just seeking to have employees pay
for the meat out of their own pockets.
As a result, the "burden" on employees in both scenarios is
pretty much the same: the employees have to pay some not vast but substantial
amount of money out of their own pockets for something that, absent an
exemption, would be paid by the employer. If I'm right that an exemption for
religious objectors from the "you must buy meat for your employees' lunches"
requirement wouldn't violate the Establishment Clause, then an exemption for
religious objectors from the "you must buy coverage for contraceptives or
abortifacents for your employees" wouldn't violate the Establishment Clause,
either.
I should note that whether there's a compelling interest in
denying such an exemption, such that the Court ought not recognize such an
exemption under RFRA, is a separate matter.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael Worley
Sent: Tuesday, November 26, 2013 3:59 PM
To: Law & Religion issues for Law Academics
Subject: Re: Contraception Mandate
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<mailto: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<mailto: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<mailto: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).
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Michael Worley
BYU Law School, Class of 2014
--
Michael Worley
BYU Law School, Class of 2014
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