The owners of Hobby Lobby are Protestants. The owners of Conestoga Wood are
Mennonites. They are opposed to abortion. They object to drugs or devices that
may work post-fertilization. They are not opposed to contraception that works,
certainly and exclusively, by other mechanisms.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Wednesday, November 27, 2013 1:10 PM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Discrimination under Title VII and RFRA (was "Patently Frivolous")
So how does it work? The women need pre approval from their boss?
And I thought the bishops oppose the Pill and these are devout Catholics.
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Nov 27, 2013, at 12:46 PM, "Douglas Laycock" <dlayc...@virginia.edu> wrote:
> They are not.
>
> Douglas Laycock
> Robert E. Scott Distinguished Professor of Law University of Virginia
> Law School
> 580 Massie Road
> Charlottesville, VA 22903
> 434-243-8546
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci
> Hamilton
> Sent: Wednesday, November 27, 2013 12:32 PM
> To: Law & Religion issues for Law Academics
> Cc: Law & Religion issues for Law Academics
> Subject: Re: Discrimination under Title VII and RFRA (was "Patently
> Frivolous")
>
> Tom-- they are not opposed to the Pill?
>
>
>
> Marci A. Hamilton
> Verkuil Chair in Public Law
> Benjamin N. Cardozo Law School
> Yeshiva University
> @Marci_Hamilton
>
>
>
> On Nov 27, 2013, at 12:16 PM, "Berg, Thomas C." <tcb...@stthomas.edu> wrote:
>
>> In response to Chip,
>>
>> As to the plaintiffs in Hobby Lobby and Conestoga, they object only
>> to certain medicines/methods that they believe cause abortions of
>> fertilized embryos. Unless opposition to abortion is a form of
>> statutory sex discrimination, which the Court rejected in Bray v.
>> Alexandria Women's Health Center, this element at least complicates
>> any argument that sex discrimination is the interest in these cases.
>> (The government asserts that abortion is not involved here, for both
>> legal and medical reasons, but this at least complicates the
>> matter--especially in a case where the question concerns the
>> objector's conscientious belief.)
>>
>> Moreover, as to the Catholic plaintiffs--those opposed to contraception as
>> well as abortion--all of the complaints, as I remember, state that
>> plaintiffs' object to paying for sterilization as well as for abortion and
>> contraception. Presumably they would object to having to pay for
>> vasectomies--if the mandate required those, which it apparently does not.
>> This article from Kaiser Health News indicates that the relevant parts of
>> the mandate only covers preventive services for women.
>> http://www.kaiserhealthnews.org/stories/2012/february/27/five-questions-health-law-mandate-birth-control.aspx
>> If this article is wrong, someone please correct me. But it would be
>> strange for the government to enforce a regulation covering only services
>> for women and then claim that the one who objects to it is engaged in sex
>> discrimination (when there is a good likelihood that the moral objections
>> would extend to relevant services for males).
>>
>> There is of course the argument for the importance of contraceptive access
>> to women's health, life-planning, and autonomy. The government has made
>> that argument strenuously, and we'll see if it succeeds on these facts. But
>> it seems to me that going further and framing the issue as sex
>> discrimination by the objectors faces problems.
>>
>> Tom
>>
>> P.S. here is the relevant passage from the link above:
>>
>> 1) Are male-based contraceptive methods, such as vasectomies or condoms,
>> covered by the rule?
>>
>> An HHS official said on Friday that women’s preventive services guidelines
>> apply to women only.
>>
>> Guidelines issued by the Health Resources and Services Administration, part
>> of HHS, require coverage without cost sharing for "all Food and Drug
>> Administration-approved contraceptive methods, sterilization procedures and
>> patient education and counseling for all women with reproductive capacity"
>> as prescribed by a provider, according to the Federal Register.
>>
>> The insurers' letter from September says they interpreted the rule to
>> include only female-based contraception and that the requirement to waive
>> co-payments "does not apply to methods and procedures intended for males."
>>
>> But Adam Sonfield, senior public policy associate at the Guttmacher
>> Institute, a reproductive health research group, says the language is
>> unclear, and it would be foolish to exclude vasectomies. For one thing, he
>> says, they are less expensive and pose a lower risk of complications than
>> female surgical sterilization methods. Plus, he says, waiving co-payments
>> for services for one sex but not the other raises issues of discrimination.
>>
>>
>> -----------------------------------------
>> Thomas C. Berg
>> James L. Oberstar Professor of Law and Public Policy University of St.
>> Thomas School of Law MSL 400, 1000 LaSalle Avenue
>> Minneapolis, MN 55403-2015
>> Phone: 651 962 4918
>> Fax: 651 962 4881
>> E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>
>> SSRN: http://ssrn.com/author='261564
>> Weblog: http://www.mirrorofjustice.blogs.com
>> ---------------------------------------------------------------------
>> -
>> ------
>> ________________________________
>> From: religionlaw-boun...@lists.ucla.edu
>> [religionlaw-boun...@lists.ucla.edu] on behalf of Ira Lupu
>> [icl...@law.gwu.edu]
>> Sent: Wednesday, November 27, 2013 10:12 AM
>> To: Law & Religion issues for Law Academics
>> Subject: Re: Discrimination under Title VII and RFRA (was "Patently
>> Frivolous")
>>
>> 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<mailto: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<mailto: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<http://sol-reform.com/>
>> [X]<https://www.facebook.com/professormarciahamilton?fref=ts> [X]
>> <https://twitter.com/marci_hamilton>
>>
>>
>> -----Original Message-----
>> From: Volokh, Eugene
>> <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>>
>> To: Law & Religion issues for Law Academics
>> <religionlaw@lists.ucla.edu<mailto: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-bounces@lists.u
>> c
>> la.edu>
>> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-bounces
>> @ 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<mailto: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 involvin
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