Michael Peabody asks this: "Certainly a closely-held corporation with 5,000 employees might object (under this decision I no longer need to qualify this by saying that the owners do the act since the will of the corporation and owners are one and the same, right?) to directly providing same-sex couples with federally mandated benefits, right? ​"
The answer is of course such a company might object under RFRA. As​ of now, discrimination against LGBT people does not violate federal law, but it may soon enough. But the government would then have expressed a strong -- I would say compelling -- interest in barring such discrimination, and what (under Hobby Lobby) "less restrictive means" are there for the government to get those benefits to those couples? Must the government itself pay? Those claims someday will be brought, and they will lose. With apologies for self-promotion, see the penultimate paragraph of this blog post: http://berkleycenter.georgetown.edu/rfp/blog/hobby-lobby-in-the-long-run ​.​ On Wed, Jul 2, 2014 at 12:24 PM, Michael Peabody <peabody...@gmail.com> wrote: > Good morning, > > In reviewing the Hobby Lobby decision, and particularly its extent, I > can't help but wonder how far this decision goes. While much of the > focus is on the contraceptives themselves, it seems like Hobby Lobby > may be to particular contraceptives as Employment Div. v. Smith was to > peyote. > > While the majority claims the decision is narrow, the circumstances > seem very broad. Here there is a closely-held corporation with 13,000 > employees whose owners object to providing insurance that makes > available contraception to be prescribed by a physician and where the > actual usage will never be known by the owner (and indeed there's no > scientific consensus as to whether the contraception causes abortion) > as it is protected by HIPAA. Anything within that range would seem to > be fair game. > > Certainly a closely-held corporation with 5,000 employees might object > (under this decision I no longer need to qualify this by saying that > the owners do the act since the will of the corporation and owners are > one and the same, right?) to directly providing same-sex couples with > federally mandated benefits, right? > > And then we enter what appear to be uncharted waters where you have a > potential Title VII case brought by a religious employee (of Religion > A) who claims that she is being discriminated against by the religious > secular corporation (of Religion B) and the EEOC takes the case as > what we could consider to be a co-plaintiff. Could the corporation > defend itself against the EEOC by claiming RFRA? Would the Corporation > defeat the Individual employee? > > Apparently the Circuits are split in whether RFRA can be used a > defense in private suits (see the following Virginia Law Review note > by Shruti Chaganti - > http://www.virginialawreview.org/sites/virginialawreview.org/files/343.pdf > ), and I'm wondering if Hobby Lobby will be used the same way. > > Any thoughts would be greatly appreciated. > > Michael Peabody, Esq. > Editor > ReligiousLiberty.TV > _______________________________________________ > 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 Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" (forthcoming, summer 2014, Wm. B. Eerdmans Pub. Co.) 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.
