Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
I don't see what Belmont Abbey's status under one statute necessarily has to do with its status under another, especially one as general as RFRA. What I think you are obliquely saying is that Belmont Abbey is not a "person" under RFRA, on the grounds that RFRA doesn't apply to institutional "persons" unless some context--determinable with reference to some other law--suggests that it might be. That's a fair enough argument, which I think others on this list can address better than I can based on the RFRA case law, but in any event it should be addressed on its own merits. I also take your point about Belmont Abbey's other conduct being potentially inconsistent with its position on its insurance benefit (though I don't think the notion that paying its employees fungible money constitutes a concession to their ability to obtain contraception carries much weight). Vance On Sun, Aug 16, 2009 at 6:08 PM, Michael R. Masinter wrote: > Belmont Abbey might have a better chance with its RFRA argument if it were > a religious institution entitled by section 702(a) of Title VII to practice > religious discrimination, and if as such an employer, it conditioned > employment on foregoing the use of birth control as an expression of > religious faith or obedience. But as I understand what I have read of the > EEOC proceedings, Belmont Abbey does not limit employment to those whom it > defines as the faithful, does not require of its employees that they refrain > from using birth control, and may not even be entitled to claim the 702(a) > exemption authorizing religious discrimination. It already pays employees > money with which they are free to purchase (or not purchase) birth control; > it offers them prescription drug coverage as an additional employee benefit, > which, like money, they are free to use to purchase (or not purchase) birth > control. If Belmont Abbey is forbidden from practicing religious > discrimination, then it's hard to make the argument that under RFRA it is > entitled to practice sex discrimination. I would think its best argument is > the question which has divided the few courts that have considered it, and > that is the question of whether denying coverage for prescription birth > control pills is sex discrimination. > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University 954.262.6151 (voice) > masin...@nova.edu954.262.3835 (fax) > > > Quoting "Vance R. Koven" : > > So for purposes of the law-n-religion analysis, the issue is whether >> Belmont >> Abbey can claim, either under the constitution or RFRA (this being a >> Federal >> matter), that it is entitled to a religious exception. Sticking with RFRA >> to >> avoid the complexities of post-Smith analysis, the government would have >> to >> contend that the prevention of sex discrimination is a compelling interest >> (which for sake of discussion I'm willing to concede). Belmont Abbey would >> then have to respond that since PDA requires coverage for contraception >> *irrespective* of actual sex discrimination as normally understood, the >> failure to provide such coverage on a nondiscriminatory basis (that is, >> because men are equally prevented from obtaining reproductive-health >> benefits--putting aside whether it could "offset" the women-only benefit >> denial with a *different* men-only denial--that would conflict with >> Catholic >> doctrine) makes the PDA proscription merely malum prohibitum and not malum >> in se, which parries the "compelling interest" alleged? If that's so, then >> the government could go back and attempt a standard sex-discrimination >> analysis of the matter without the benefit of the PDA presumption. >> Vance >> >> On Sat, Aug 15, 2009 at 5:51 PM, Michael R. Masinter > >wrote: >> >> The PDA makes denial of health insurance benefits relating to pregnancy >>> sex >>> discrimination without regard to whether an employer denies men coverage >>> for >>> some other condition that affects only men. Denying coverage for a >>> prescription drug that prevents pregnancy, a risk to which only women are >>> exposed, may therefore be sex discrimination under the PDA even if men >>> are >>> not denied coverage for vasectomies. Whether the cost of prevention of >>> pregnancy, as distinct from the health related cost of pregnancy, counts >>> as >>> one of the risks and burdens associated with pregnancy the PDA was >>> intended >>> to relieve women from bearing under employer provided health insurance >>> and >>> other employee benefit programs might better frame the question a court >>> ultimately will have to answer. >>> >>> Michael R. Masinter 3305 College Avenue >>> Professor of Law Fort Lauderdale, FL 33314 >>> Nova Southeastern University 954.262.6151 (voice) >>> masin...@nova.edu954.262.3835
Re: EEOC says Catholic College Discriminated by Removing Contraceptive
This point might have been made by someone else already, but I'll venture ahead anyway: I'm not sure we need to accept the premise that Belmont Abbey is guilty of sex discrimination here. The EEOC determination found that "By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives" "By denying coverage, men are not affected, only women." The obvious analogy implicit here is to the sort of pregnancy discrimination at issue in Gilbert, which Congress has (rightly) determined to be a form of sex discrimination. But this case is different. Belmont Abbey can credibly argue that its policy would be to refuse to pay for any contraceptive, regardless of whether the contraceptive is being taken by men or women. That this policy affects men and women is not the product of biology, as it was in Gilbert, but of independent policy decisions made by other institutions to treat women's contraceptives, but not men's contraceptives, as prescription items. To put it another way: When General Electric argued in the Gilbert case that it was discriminating against pregnancy, not against women, that would rightly strike most observers as a laughable, or at least unduly formalistic, proposition. But when Belmont Abbey argues that it is discriminating against contraception, not against women, that seems to me to be neither laughable nor formalistic. Consider this analogy: Imagine a pacifist landlord who refuses to rent to "combat soldiers." Is that a form of discrimination against men merely because another institution (the U.S. Congress) has made an independent policy decision not to allow women to be combat soldiers? (For purposes of the hypo, put aside the fact that many women do de facto serve in combat.) Or imagine a landlord right next to a single-sex college who refuses to rent to "college students." Is that a form of sex discrimination merely because the college has, of its own accord and as its right, chosen to be single-sex? Now, these situations might, I guess, set up some sort of "disparate impact" claim, but that seems to me to require a more complicated analysis; in Bemont Abbey's case, it might leave more room for the operation of religious conscience or RFRA. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Re: EEOC says Catholic College Discriminated by Removing Contraceptive
Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Cpngress enacted the PDA because pregnancy uniquely burdens women in the workplace. As I noted earlier, that still leaves the question of whether preventing the burden of pregnancy falls within the intended scope of the PDA, but answering that question does not hinge whether men can use contraceptives, prescription or otherwise. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Perry Dane : This point might have been made by someone else already, but I'll venture ahead anyway: I'm not sure we need to accept the premise that Belmont Abbey is guilty of sex discrimination here. The EEOC determination found that "By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives" "By denying coverage, men are not affected, only women." The obvious analogy implicit here is to the sort of pregnancy discrimination at issue in Gilbert, which Congress has (rightly) determined to be a form of sex discrimination. But this case is different. Belmont Abbey can credibly argue that its policy would be to refuse to pay for any contraceptive, regardless of whether the contraceptive is being taken by men or women. That this policy affects men and women is not the product of biology, as it was in Gilbert, but of independent policy decisions made by other institutions to treat women's contraceptives, but not men's contraceptives, as prescription items. To put it another way: When General Electric argued in the Gilbert case that it was discriminating against pregnancy, not against women, that would rightly strike most observers as a laughable, or at least unduly formalistic, proposition. But when Belmont Abbey argues that it is discriminating against contraception, not against women, that seems to me to be neither laughable nor formalistic. Consider this analogy: Imagine a pacifist landlord who refuses to rent to "combat soldiers." Is that a form of discrimination against men merely because another institution (the U.S. Congress) has made an independent policy decision not to allow women to be combat soldiers? (For purposes of the hypo, put aside the fact that many women do de facto serve in combat.) Or imagine a landlord right next to a single-sex college who refuses to rent to "college students." Is that a form of sex discrimination merely because the college has, of its own accord and as its right, chosen to be single-sex? Now, these situations might, I guess, set up some sort of "disparate impact" claim, but that seems to me to require a more complicated analysis; in Bemont Abbey's case, it might leave more room for the operation of religious conscience or RFRA. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
RE: EEOC says Catholic College Discriminated by Removing Contraceptive
How is declining to subsidize the *prevention* of pregnancy a sign of discrimination *against* pregnancy? > Date: Mon, 17 Aug 2009 16:31:29 -0400 > From: masin...@nova.edu > To: religionlaw@lists.ucla.edu > Subject: Re: EEOC says Catholic College Discriminated by Removing > Contraceptive > > Contraceptives prevent pregnancy, and only women get pregnant. > Denying contraceptive coverage to men does not expose men to > pregnancy, but denying coverage to women does expose women to > pregnancy. Cpngress enacted the PDA because pregnancy uniquely > burdens women in the workplace. As I noted earlier, that still leaves > the question of whether preventing the burden of pregnancy falls > within the intended scope of the PDA, but answering that question does > not hinge whether men can use contraceptives, prescription or otherwise. > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University 954.262.6151 (voice) > masin...@nova.edu954.262.3835 (fax) > > Quoting Perry Dane : > > > This point might have been made by someone else already, but > > I'll venture ahead anyway: > > > > I'm not sure we need to accept the premise that Belmont Abbey > > is guilty of sex discrimination here. The EEOC determination found > > that "By denying prescription contraception drugs, Respondent (the > > college) is discriminating based on gender because only females take > > oral prescription contraceptives" "By denying coverage, men are not > > affected, only women." The obvious analogy implicit here is to the > > sort of pregnancy discrimination at issue in Gilbert, which Congress > > has (rightly) determined to be a form of sex discrimination. > > > > But this case is different. Belmont Abbey can credibly argue > > that its policy would be to refuse to pay for any contraceptive, > > regardless of whether the contraceptive is being taken by men or women. > > That this policy affects men and women is not the product of biology, > > as it was in Gilbert, but of independent policy decisions made by other > > institutions to treat women's contraceptives, but not men's > > contraceptives, as prescription items. > > > > To put it another way: When General Electric argued in the > > Gilbert case that it was discriminating against pregnancy, not against > > women, that would rightly strike most observers as a laughable, or at > > least unduly formalistic, proposition. But when Belmont Abbey argues > > that it is discriminating against contraception, not against women, > > that seems to me to be neither laughable nor formalistic. > > > > Consider this analogy: Imagine a pacifist landlord who refuses > > to rent to "combat soldiers." Is that a form of discrimination against > > men merely because another institution (the U.S. Congress) has made an > > independent policy decision not to allow women to be combat soldiers? > > (For purposes of the hypo, put aside the fact that many women do de > > facto serve in combat.) > > > > Or imagine a landlord right next to a single-sex college who > > refuses to rent to "college students." Is that a form of sex > > discrimination merely because the college has, of its own accord and as > > its right, chosen to be single-sex? > > > > Now, these situations might, I guess, set up some sort of > > "disparate impact" claim, but that seems to me to require a more > > complicated analysis; in Bemont Abbey's case, it might leave more room > > for the operation of religious conscience or RFRA. > > > > Perry > > > > > > > > *** > > Perry Dane > > Professor of Law > > > > Rutgers University > > School of Law -- Camden > > 217 North Fifth Street > > Camden, NJ 08102 > > > > d...@crab.rutgers.edu > > Bio: www.camlaw.rutgers.edu/bio/925/ > > SSRN Author page: www.ssrn.com/author=48596 > > Academia.edu page: http://rutgers.academia.edu/PerryDane > > > > Work: (856) 225-6004 > > Fax: (856) 969-7924 > > Home: (610) 896-5702 > > *** > > > > > > ___ > > 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, se
RE: EEOC says Catholic College Discriminated by Removing Contraceptive
I know it is shifting the focus of the discussion, but one way to think about the broader issue here is to ask if there is a way to protect the religious liberty of Catholic institutions that do not want to subsidize coverage for prescription contraceptives in the health plans they provide to their employees and also make sure that women employees receive equal prescription drug coverage. Government might be able to play a more positive role here in addition to or as an alternative to a finding of gender discrimination. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter Sent: Monday, August 17, 2009 1:31 PM To: religionlaw@lists.ucla.edu Subject: Re: EEOC says Catholic College Discriminated by Removing Contraceptive Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Cpngress enacted the PDA because pregnancy uniquely burdens women in the workplace. As I noted earlier, that still leaves the question of whether preventing the burden of pregnancy falls within the intended scope of the PDA, but answering that question does not hinge whether men can use contraceptives, prescription or otherwise. Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Perry Dane : > This point might have been made by someone else already, but > I'll venture ahead anyway: > > I'm not sure we need to accept the premise that Belmont Abbey > is guilty of sex discrimination here. The EEOC determination found > that "By denying prescription contraception drugs, Respondent (the > college) is discriminating based on gender because only females take > oral prescription contraceptives" "By denying coverage, men are not > affected, only women." The obvious analogy implicit here is to the > sort of pregnancy discrimination at issue in Gilbert, which Congress > has (rightly) determined to be a form of sex discrimination. > > But this case is different. Belmont Abbey can credibly argue > that its policy would be to refuse to pay for any contraceptive, > regardless of whether the contraceptive is being taken by men or women. > That this policy affects men and women is not the product of biology, > as it was in Gilbert, but of independent policy decisions made by other > institutions to treat women's contraceptives, but not men's > contraceptives, as prescription items. > > To put it another way: When General Electric argued in the > Gilbert case that it was discriminating against pregnancy, not against > women, that would rightly strike most observers as a laughable, or at > least unduly formalistic, proposition. But when Belmont Abbey argues > that it is discriminating against contraception, not against women, > that seems to me to be neither laughable nor formalistic. > > Consider this analogy: Imagine a pacifist landlord who refuses > to rent to "combat soldiers." Is that a form of discrimination against > men merely because another institution (the U.S. Congress) has made an > independent policy decision not to allow women to be combat soldiers? > (For purposes of the hypo, put aside the fact that many women do de > facto serve in combat.) > > Or imagine a landlord right next to a single-sex college who > refuses to rent to "college students." Is that a form of sex > discrimination merely because the college has, of its own accord and as > its right, chosen to be single-sex? > > Now, these situations might, I guess, set up some sort of > "disparate impact" claim, but that seems to me to require a more > complicated analysis; in Bemont Abbey's case, it might leave more room > for the operation of religious conscience or RFRA. > > Perry > > > > *** > Perry Dane > Professor of Law > > Rutgers University > School of Law -- Camden > 217 North Fifth Street > Camden, NJ 08102 > > d...@crab.rutgers.edu > Bio: www.camlaw.rutgers.edu/bio/925/ > SSRN Author page: www.ssrn.com/author=48596 > Academia.edu page: http://rutgers.academia.edu/PerryDane > > Work: (856) 225-6004 > Fax: (856) 969-7924 > Home: (610) 896-5702 > *** > > > ___ > 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 ca
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
There are many hurdles to a successful RFRA defense to otherwise unlawful sex discrimination (making the contested assumption that denial of coverage is sex discrimination). Congress has already provided both the 702(a) exemption and the bona fide occupational qualification defense for employers; the two generally provide greater protection for religious employers than does RFRA. Though RFRA applies to all government action, including government action under Title VII, most Title VII claims are brought by a charging party after receipt of a right to sue letter, not by EEOC. The Seventh Circuit has held that RFRA does not apply to Title VII claims brought by private litigants. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006). A panel of the Second Circuit held otherwise in Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006), but a later Second Circuit panel questioned the soundness of that decision. Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). Unless EEOC sues Belmont Abbey, RFRA may not apply for lack of government action. Assuming RFRA applies, Belmont Abbey may have difficulty demonstrating that the resolution of that claim in favor of plaintiffs substantially burdens the free exercise of religion for reasons I already noted. The individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment, and who therefore may have trouble convincing a judge that a finding of sex discrimination is substantially burdens the free exercise of religion, and that Title VII's does not further the government's compelling interest in the eradication of workplace sex discrimination as defined by the PDA in the least restrictive manner. That's not to say RFRA the scope of RFRA's application to Title VII is clear; perhaps RFRA does apply to private claims of discrimination, a finding of sex discrimination would substantially burden the free exercise of religion, and the government's compelling interest in eradicating workplace sex discrimination as defined to include pregnancy could be carried out in a less restrictive manner. If so, and if denying coverage is sex discrimination, then I agree RFRA will matter. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting "Vance R. Koven" : I don't see what Belmont Abbey's status under one statute necessarily has to do with its status under another, especially one as general as RFRA. What I think you are obliquely saying is that Belmont Abbey is not a "person" under RFRA, on the grounds that RFRA doesn't apply to institutional "persons" unless some context--determinable with reference to some other law--suggests that it might be. That's a fair enough argument, which I think others on this list can address better than I can based on the RFRA case law, but in any event it should be addressed on its own merits. I also take your point about Belmont Abbey's other conduct being potentially inconsistent with its position on its insurance benefit (though I don't think the notion that paying its employees fungible money constitutes a concession to their ability to obtain contraception carries much weight). Vance On Sun, Aug 16, 2009 at 6:08 PM, Michael R. Masinter wrote: Belmont Abbey might have a better chance with its RFRA argument if it were a religious institution entitled by section 702(a) of Title VII to practice religious discrimination, and if as such an employer, it conditioned employment on foregoing the use of birth control as an expression of religious faith or obedience. But as I understand what I have read of the EEOC proceedings, Belmont Abbey does not limit employment to those whom it defines as the faithful, does not require of its employees that they refrain from using birth control, and may not even be entitled to claim the 702(a) exemption authorizing religious discrimination. It already pays employees money with which they are free to purchase (or not purchase) birth control; it offers them prescription drug coverage as an additional employee benefit, which, like money, they are free to use to purchase (or not purchase) birth control. If Belmont Abbey is forbidden from practicing religious discrimination, then it's hard to make the argument that under RFRA it is entitled to practice sex discrimination. I would think its best argument is the question which has divided the few courts that have considered it, and that is the ques
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Michael Masinter wrote: Contraceptives prevent pregnancy, and only women get pregnant. Denying contraceptive coverage to men does not expose men to pregnancy, but denying coverage to women does expose women to pregnancy. Let's tease out the issues here. It's possible that denying coverage for contraceptives violates the PDA because of its consequences for the risk of unwanted pregnancy, a risk whose effect is uniquely borne by women. If that's true, though, it shouldn't matter who is using the contraceptives, men or women. Let's call this the "PDA argument." But, as I understand it, the EEOC didn't make the PDA argument, at least as such. Instead, it wrote that "By denying prescription contraception drugs, Respondent (the college) is discriminating based on gender because only females take oral prescription contraceptives"? Let's call this the "straightforward argument." This was the argument to which I was responding. The consequences of the two arguments are obviously very different. For example, the straightforward argument would apply, but the PDA argument would not, if an employer denied coverage for some other type of treatment that was directed only at women, such as, say, post-menopausal hormone therapy. Conversely, the PDA argument would apply, but the straightforward argument would not, if (counterfactually) there were equally-available prescription contraceptive pills for both men and women, and an employer denied coverage for both types of contraceptives. I've already suggested why the straightforward argument doesn't impress me -- it penalizes Belmont Abbey for institutional decisions made by someone else, and it doesn't give an honest account of the best description of what Belmont Abbey is doing. The PDA argument strikes me as stronger in principle, but I'm not sure (though this is far from the area of my expertise) that the text or policy of the PDA can support the weight of it. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
Re: EEOC says Catholic College Discriminated by Removing Contraceptive Coverage from Health Insurance
Michael Masinter also argues that Belmont Abbey may have difficulty demonstrating that the resolution of that claim in favor of plaintiffs substantially burdens the free exercise of religion because an individual female employee makes the choice to purchase birth control pills, and whether she does so with the proceeds of her employer paid salary or her employer paid prescription drug benefits, she is doing so with funds traceable to her employer, who does not condition employment on refusing to use birth control or on refusing to pay for birth control with funds that are proceeds of employment This is essentially the old argument that "money is fungible." But there are two problems here. First, law and practice are full of instances in which this sort of argument doesn't govern. Cf. much of establishment clause doctrine. Or consider the fact that my school will not reimburse me out of state funds for buying alcohol at business meals, but has no problem if I use part of my salary to buy alcohol at such meals, and even (I am told) has no problem reimbursing me out of gift funds. More to the point: Belmont Abbey clearly thinks that there is a religiously significant difference between directly and indirectly paying for contraception. And our doctrine of religious liberty strongly insists that we not second-guess such judgments, as long as they are sincere. Michael's argument sort of reminds me of someone telling an observant Jew that it must be OK to turn on an electric light on the Sabbath because, after all, that's not "work." Lots of religious beliefs and doctrines follow forms of logic, and make fine distinctions, that don't necessarily convince outsiders. Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 d...@crab.rutgers.edu Bio: www.camlaw.rutgers.edu/bio/925/ SSRN Author page: www.ssrn.com/author=48596 Academia.edu page: http://rutgers.academia.edu/PerryDane Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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.
