The government *is *relying upon women's equality -- not only health -- as one of the compelling interests. This makes sense, since presumably most (but not all) employees would pay for contraception ut of pocket, rather than go without.
As for whether an employer's failure to cover contraception would have violated federal law *before *the HHS rule, in 2000 the EEOC interpreted the PDA as requiring employers to cover prescription contraception for women if they cover “other prescription drugs and devices, or other types of services, that are used to prevent the occurrences of other medical conditions.” EEOC Commission Decision on Coverage of Contraception (Dec. 14, 2000), *available at* http://www.eeoc.gov/policy/docs/decision- contraception.html. The only court of appeals to address the issue disagreed, however, in a split decision -- see *In re Union Pacific R. Employment Practices Lit.*, 479 F3d 936 (CTA8 2007). On Wed, Nov 27, 2013 at 11:12 AM, Ira Lupu <icl...@law.gwu.edu> wrote: > All of Marci's hypotheticals are loaded up, because they involve direct > imposition on women's behavior (wear head scarves, don't use certain > medicines or drugs) rather than just refusing to pay for the relevant > goods. And Marci's claim that Hobby Lobby and others are engaging in > religious discrimination seems wrong to me -- the refusal to cover affects > every female employee, regardless of her religious beliefs or affiliation > or conduct. > > But Marci's argument that Hobby Lobby and others are engaging in sex > discrimination, in violation, of Title VII, seems much more persuasive - > the coverage refusal affects all women and only women, and is therefore a > sex discriminatory denial of legally compelled fringe benefits. I have not > read a single post that replies to that way of framing the argument. If > we view this as an attempt to gain a RFRA-based exemption from Title VII as > well as from the ACA, does that change the analysis? Doesn't the > government's compelling interest argument get stronger -- under-inclusion > is no longer a problem of the same degree, and cases like Bob Jones > University come into the mix? > > Are there good answers to this way of framing the question? Is it too > late for the government to so frame it in the Supreme Court? > > > On Wed, Nov 27, 2013 at 11:01 AM, Michael Worley <mwor...@byulaw.net>wrote: > >> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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.
