Contraceptives and gender discrimination
dlaycock at virginia.edu
Mon Feb 13 09:02:59 PST 2012
Forgot about the Establishment Clause question at the end of this e-mail.
Five times, the Court has unanimously said that religious exemptions that
relieve regulatory burdens do not violate the Establishment Clause.
Amos v. Corporation of the Presiding Bishop (1987)
Texas Monthly v. Bullock (1989) (they struck down that exemption because it
didn't relieve a burden in the plurality's view, but everyone but White
expressly reaffirmed Amos, and White wrote Amos).
Employment Division v. Smith (1990) (four concurring and dissenting thought
free exercise required exemptions; the majority said legislatures can enact
them and they might be desirable)
Bd of Education v. Grumet (1994) (they struck down that exemption because it
was discriminatory, but all nine justices expressly reaffirm that
nondiscriminatory exemptions to relieve regulatory burdens are permissible)
Cutter v. Wilkinson (2005) (unanimously rejecting establishment clause
attack on the prison provisions of RLUIPA).
Supporters of exemptions have to live with their 5-4 Smith. Opponents of
exemptions should have to live with five unanimous rejections of their
Establishment Clause argument.
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
From: Gilbert, Lauren [mailto:lgilbert at STU.EDU]
Sent: Monday, February 13, 2012 11:08 AM
To: Douglas Laycock; Marci Hamilton; Walsh, Kevin
Cc: Con Law Prof list
Subject: RE: Contraceptives and gender discrimination
So wouldn't the religious exemption, if enacted, burden a Catholic who does
not follow Church teachings on this issue (or a non-Catholic who works for a
Catholic entity, like a Catholic university) but believes that it is her
God-given right to control her reproductive autonomy, and that the
Government's decision to exempt religious organizations opposed to birth
control from providing contraceptives substantially infringes on that right?
Just because her believes are inconsistent with the Church's doesn't mean
that they're not legitimate. Also, wouldn't we also have an Establishment
Clause problem if the Obama Administration caves on this?
Lauren Gilbert, Esq.
Professor of Law
St. Thomas University School of Law
16401 NW 37th Ave.
Miami Gardens, FL 33054
Tel: (305) 623-2386 (work)
You can access my papers on the Social Science Research Network (SSRN) at
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