I know this isn't a full answer; but the issue is not whether or not a woman can use birth control for cramps, etc. as far as I am aware.
Further, the issue is who pays for the contraception, not whether the contraception can be used. On Wed, Nov 27, 2013 at 7:50 AM, <hamilto...@aol.com> wrote: > The Court has not drawn such a line, in part because it hasn't thought > about it carefully. Citizens United brings the possibilities to the > forefront. > > In any event, the for-profit/nonprofit difference makes a meaningful > difference in this case, because it is in the ACA's women's reproductive > care mandate, > and it is in Title VII, which protects women. All of my postings have > been in this arena, and given the pressures of this holiday week, I didn't > want to lose > track of that focus with the lunch hypo Eugene suggested. It is > undoubtedly interesting, but I don't think very illuminating given there is > no federal civil rights > or constitutional right to lunch or food generally. I noticed on NCR that > there is some talk by the bishops in light of the Pope's welcome focus > on the poor, about the fundamental right to food, but that takes us far > afield from Hobby Lobby with all due respect to Eugene. > > I had posed some on-point hypotheticals I am deeply interested in > knowing folks' views on, yet it was lost in the fascinating topics up for > discussion. > > Here are a few modifications and additions to those. > > 1. Can employers successfully invoke RFRA to follow their religious > beliefs to impose headscarves on every woman in a for-profit corporation of > over 50 employees (Mandate + > Title VII at play)? > > 2. Can employers successfully invoke RFRA to follow their religious > beliefs against contraception to bar women from using contraception to stop > a woman's constant > bleeding due to hormone imablances? Or to halt monthly debilitating > cramps? > > 3. Can employers successfully invoke RFRA to follow their religious > beliefs against contraception to bar families from providing oral > contraceptives to girls with > disfiguring acne triggered by hormonal shifts? > > 4. Can employers successfully invoke RFRA to follow their religious > beliefs against women working outside the home, and > therefore scale salaries to deincentivize women and drive them from the > workplace. > > 5. Can an employer successfully invoke RFRA to follow their religious > beliefs and fire any female employee who obtains an abortion (which is > consistent w her religious beliefs)? > > All thoughts on these hypotheticals would be greatly appreciated as we > work through this important issue for religious business owners and women. > > Happy Thanksgiving all-- > > 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 > <https://www.facebook.com/professormarciahamilton?fref=ts> > <https://twitter.com/marci_hamilton> > > > > -----Original Message----- > From: Volokh, Eugene <vol...@law.ucla.edu> > To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > Sent: Wed, Nov 27, 2013 12:20 am > Subject: RE: "Patently Frivolous" and discrimination > > But why would that turn a serious argument into a > “patently frivolous” one? Both nonprofits and for-profits are engaged in > monetary transactions. (U.S. v. Lee talked of people “enter[ing] into > commercial activity as a matter of choice,” but education, as we all know, > is a commercial activity whether carried on by non-profit institutions or > for-profit ones.) Both choose to participate in such transactions. When > either discriminates, this has an effect on third parties whom the law is > trying to protect. > > Also, as Chip pointed out, Braunfeld v. Brown involved > for-profit businesses, and no-one on the Court thought a free exercise > claim brought by them was patently frivolous. And I should also add that > the unemployment compensation claimants were also engaged in the commercial > marketplace, selling their own labor for profit. The Court has never drawn > a for-profit vs. nonprofit line when it comes to religious freedom claims, > and though Lee hinted at a marketplace transaction vs. other conduct line, > the Court hasn’t generally followed such a line (and in any event Lee > ultimately applied the strict scrutiny test, rather than concluding that > the marketplace transactions kept that test from being applicable). > Likewise, to my knowledge lower courts have not drawn such a line. > > Eugene > > *From:* religionlaw-boun...@lists.ucla.edu [ > mailto:religionlaw-boun...@lists.ucla.edu<religionlaw-boun...@lists.ucla.edu?>] > *On Behalf Of *James Oleske > *Sent:* Tuesday, November 26, 2013 6:13 PM > *To:* Law & Religion issues for Law Academics > *Subject:* Re: "Patently Frivolous" and discrimination > > But Bob Jones University is a nonprofit, which the Supreme Court noted > at the beginning of its opinion, and we're talking about the Court's > treatment of religious exemption claims by for-profit businesses. > > > On Tue, Nov 26, 2013 at 4:59 PM, Volokh, Eugene <vol...@law.ucla.edu> > wrote: > I appreciate the point, but when the Court confronted > the issue more squarely, in Bob Jones, it didn’t treat the university’s > claim as patently frivolous, but did apply strict scrutiny (though > upholding the law, of course). Likewise, the 1990s lower court cases > involving marital status discrimination in housing, some of which granted > exemptions under state constitutions or RFRAs and some of which denied > them, didn’t treat them as frivolous. So it seems to me the notion that > religious exemption claims can be brought by people running for-profit > businesses is pretty well-established in lower courts, and not foreclosed > by the Supreme Court. And the notion that this would apply even when the > businesses are organized as corporations hardly seems frivolous to me, > either. > > Eugene > James Oleske writes: > > That is how the Supreme Court described the contention of a restaurant > owner who claimed that 1964 Civil Rights Act "constitute[d] an interference > with the free exercise of [his] religion." Newman v. Piggie Park > Enterprises, Inc., 390 U.S. 400, 402 n.5. Although the restaurant owner's > religion compelled him "to oppose any integration of the races whatever," > 256 F. Supp. 941, 944 (D.S.C. 1966), and although the 1964 Civil Rights Act > required him to serve all races in his restaurants, the Court characterized > the argument as frivolous without engaging in any balancing of burdens and > interests. > > > > > > > > _______________________________________________ > 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.
