Contraceptives and gender discrimination

[Humbach, Prof. John A.]

> "that principle needs to take into account pacifists ..., white supremacists ... and libertarians "

I think the trouble with this analogy is that, in the new health care context, the government precisely is *not* using tax dollars in the general fund to carry out a governmental function. It's "coercing" private persons to perform that function in its place.

This debate points up exactly what many think is wrong with Obamacare, at its core. If healthcare is truly a "right," as it is in most places in the modern industrialzed world, then it should be the responsibility of government to supply at least a basic decent minimum of care (including, one would think, reproductive-related care). When the government tries to fob off this responsibility on the private sector, such as on employers, all kinds of problems are bound arise. The reason is that, when you get down to it, private parties are not the government, they do not necessarily share its vision and (except in a totalitarian state) they should not be expected or required to conform to its priorities.

John A. Humbach
Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
914-422-4239

Personal website: humbach.net
________________________________________
From: John Bickers [bickersj1 at nku.edu]
Sent: Saturday, February 11, 2012 7:07 PM
To: Humbach, Prof. John A.; Crowley, Donald; Walsh, Kevin; Marci Hamilton; Gilbert, Lauren
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination

But this regulation doesn't force anyone to USE birth control.  If an anti-coercion rationale is deployed to cover 'being made to pay for something that one believes is wrong,' than that principle needs to take into account pacifists being made to pay for wars, white supremacists being made to pay for measures designed to help victims of discrimination, and libertarians being made to pay for any number of things.

This is, after all, about a benefit required to be provided by an employer for an employee.  I do not believe that, outside of the ministerial exception, we have generally allowed a religious exemption from employment rules under the principle that the employer should not be required to do acts forbidden by their religion.

Compare Hosanna-Tabor.  Had Ms. Perich remained a lay teacher, does anyone think the Court would have allowed the school to insist that it could not be forced into the civil court system because of its belief that Christians should settle their disputes amicably?

John M. Bickers
Salmon P. Chase College of Law
Northern Kentucky University

________________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] on behalf of Humbach, Prof. John A. [jhumbach at law.pace.edu]
Sent: Saturday, February 11, 2012 5:48 PM
To: Crowley, Donald; Walsh, Kevin; Marci Hamilton; Gilbert, Lauren
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination

"How this violates the freee exercise clause..."??

The underlying question, I suppose, is this: Does the free exercise clause prohibit government from forcing people to do acts that their religious tenets forbid (eating pork, cutting their hair, going out to kill people in war, etc.)?

We know from the Smith (peyote) case that the free exercise clause doesn't necessarily prevent general laws that require people to *refrain* from acts that their religious tenets might require (such as smoking peyote or child marriages).  But cf. Lukumi Babalu (striking down a prohibition on animal sacrifice aimed specifically at a religious rite).

However, it seems to be one thing to say that the government can forbid religion-mandated affirmative acts under "general" laws and quite another to let the government coerce people to do acts forbidden by their religion. Perhaps part of the difference is that many affirmative acts cause obvious social harm, even when they're motivated by religion, while mere abstention from action rarely is a "cause" of harm (though it may be deemed a failure to prevent it).

Anyway, I don't think the Supreme Court has spoken on the power of government to coerce contra-religious acts. But I think that some lower courts have, especially in prisoner cases (hair cutting) and, perhaps, employment discrimination cases (sabbath working requirements?).

John A. Humbach
Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
914-422-4239