Contraceptives and gender discrimination

Mon Feb 13 09:30:37 PST 2012

I confess that I'm genuinely torn on this issue, more than I usually am given that I've basically been educated by Doug on religious liberty and, therefore, disagree with Marci about Boerne.  That being said, I find myself most sympathetic to claims of individuals and to local churches (like those in Boerne), where one can easily believe that the state is trying to infringe a rich associational life on the ground.  I find myself far less sympathetic with claims made by institutional churches, especially, frankly, those that are wildly undemocratic (not to mention sexist) in their structure and therefore, often without much plausible claim to be defending a de facto rich associational life instead of using their institutional power to discipline recalcitrants both within the church and outside of it.   I also confess that I'm having trouble seeing a stopping point:  Are we really going to say that a corporation dominated by conservative Catholics or Orthodox Jews can claim exemption from ordinary labor or employment laws?    After all, as Doug knows full well, there are many religions that reject the divide between "private pietism" and "public citizenship."  Once all of life becomes the occasion for witnessing one's allegiance to a sovereign God, what role is there for a would-be "sovereign state"?

I can readily understand some of the political criticisms of Obama for handing this somewhat ineptly (i.e., he didn't understand that even EJ Dionne would be a harsh critic of what was perceived as a clunky and overreaching policy), but I wish I felt more willing to sign up unequivocally with Doug (whom I usually agree with) or Marci (with whom I don't, at least on this set of issues).  I think that both make good points.   Is this yet another example of "hard cases making bad law," that what is needed is some genuine sense of compromise and accommodation, running both ways, that standing on principles that inevitably demean those who don't agree?

sandy

From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of hamilton02 at aol.com
Sent: Monday, February 13, 2012 11:07 AM
To: dlaycock at virginia.edu; lgilbert at STU.EDU; kwalsh at richmond.edu
Cc: conlawprof at lists.ucla.edu
Subject: Re: Contraceptives and gender discrimination

Doug-- You are missing the point about 2 believers.   The RFRA claim of the individual believer is that their RELIGIOUS beliefs
about birth control have been undermined by the government when it set up a mandatory federal health care system and
gave the religious institution the ability to opt out of birth control coverage.    Their religious beliefs about childbirth and family
planning are being burdened by the government's one-sided accommodation.

Whether or not the individual can win on substantial burden is a matter of free exercise (statutory) doctrine, not privacy doctrine.   If you want
to say that financial burden imposed by a government system is never a substantial burden, I'll be surprised, as that is a routine argument in RLUIPA cases
by religious developers.  It can't be that argument is non-frivolous only when land is involved and not when birth control and family planning are.

 The inability of those who routinely favor churches to comprehend that those affected by accommodations are also religious with religious
claims is stunning.

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
hamilton02 at aol.com<mailto:hamilton02 at aol.com>

-----Original Message-----
From: Douglas Laycock <dlaycock at virginia.edu>
To: hamilton02 <hamilton02 at aol.com>; lgilbert <lgilbert at STU.EDU>; kwalsh <kwalsh at richmond.edu>
Cc: conlawprof <conlawprof at lists.ucla.edu>
Sent: Mon, Feb 13, 2012 11:51 am
Subject: RE: Contraceptives and gender discrimination
Under no scenario is the government regulating the individual here. The government is not saying that individuals cannot obtain contraception.

The government is either regulating, or exempting, the religious institution. If the institution is exempted, then it decides whether to provide contraception.

It is settled doctrinally that failure  to fund is not a burden (see, most recently, Locke v. Davey). But even if it were, the failure to fund contraception is a decision of the religious institution, not a decision of the government. And if it were a cognizable burden, and if it were imposed by government, there are relatively few individuals for which this would be a burden on religion, as opposed to a burden on reproductive liberty. So there are multiple reasons why the employee has no remotely plausible RFRA claim, and the religious institution has an obvious RFRA claim. Disagreement about policy should not drive wholly implausible interpretations of the statute.

Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA  22903
     434-243-8546

From: hamilton02 at aol.com<mailto:hamilton02 at aol.com> [mailto:hamilton02 at aol.com<mailto:hamilton02 at aol.com?>]
Sent: Monday, February 13, 2012 11:42 AM
To: lgilbert at STU.EDU<mailto:lgilbert at STU.EDU>; dlaycock at virginia.edu<mailto:dlaycock at virginia.edu>; kwalsh at richmond.edu<mailto:kwalsh at richmond.edu>
Cc: conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Subject: Re: Contraceptives and gender discrimination

Precisely.  The government is going to burden one side of the employer/employee relationship.  There is no reason
to choose the institution as the more valuable religious actor for purposes of religious liberty claims.  As usual, this
is a zero sum game that the government most likely wins/survives/does the right thing when it acts neutrally and with generally applicable
laws.  This is not a situation where only one set of believers must be taken into account for purposes of analyzing an accommodation
(most are not).

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
hamilton02 at aol.com<mailto:hamilton02 at aol.com>

-----Original Message-----
From: Gilbert, Lauren <lgilbert at STU.EDU<mailto:lgilbert at STU.EDU>>
To: Douglas Laycock <dlaycock at virginia.edu<mailto:dlaycock at virginia.edu>>; Marci Hamilton <hamilton02 at aol.com<mailto:hamilton02 at aol.com>>; Walsh, Kevin <kwalsh at richmond.edu<mailto:kwalsh at richmond.edu>>
Cc: Con Law Prof list <conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>>
Sent: Mon, Feb 13, 2012 11:08 am
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 http://ssrn.com/author=339800

________________________________
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu> on behalf of Douglas Laycock
Sent: Mon 2/13/2012 10:24 AM
To: 'Marci Hamilton'; 'Walsh, Kevin'
Cc: 'Con Law Prof list'
Subject: RE: Contraceptives and gender discrimination
It protects the person whose religion is being burdened by the government.
Not the person who has a conflict with her church or with her employer. The
statutory text is not ambiguous on that point.

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: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Sunday, February 12, 2012 11:40 PM
To: Walsh, Kevin
Cc: Con Law Prof list
Subject: Re: Contraceptives and gender discrimination

I will return to my original response to Kevin--  there are two sets of
arguments here under RFRA.   The religious institution employer and the
religious employee.   The employer believes women should not use birth
control and the woman believes that family planning is necessary for the
full flowering of children and family and the woman's god-given gifts.  Both
are sincere beliefs
So whose religious conduct does RFRA        protect?

Marci

On Feb 12, 2012, at 9:10 PM, "Walsh, Kevin" <kwalsh at richmond.edu<mailto:kwalsh at richmond.edu>> wrote:

> Suppose one accepts the argument about incidental burdens. What about the
RFRA's "least restrictive means" requirement? See 42 U.S.C. 2000bb-1(b)(2).
Do supporters of the contraceptives mandate concede that it cannot satisfy
this part of the RFRA and fall back on the no-substantial-burden argument?
If so, how does that argument go? Or is there instead an argument that
forcing private employers with religious objections to offer a policy for
"free" contraceptives is the _least restrictive means_ of providing access
to low-cost contraceptives?
>
> Kevin Walsh
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
> [conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Zietlow, Rebecca E.
> [REBECCA.ZIETLOW at utoledo.edu<mailto:REBECCA.ZIETLOW at utoledo.edu>]
> Sent: Sunday, February 12, 2012 8:52 PM
> To: Richard Dougherty; Marci Hamilton
> Cc: Con Law Prof list
> Subject: RE: Contraceptives and gender discrimination
>
> No one is denying a constitutional right to birth control to women.  Lack
of access to insurance for birth control may effectively bar low income
women who work for Catholic run institutions from obtaining birth control.
However, as we all know, the government has no affirmative obligation to
subsidize the exercise of any constitutional right.  My point was simply
that enabling those women to have effective access to birth control is a
strong enough government interest to justify any incidental burden on
Catholic run institutions imposed by the Obama policy.  And, that this is an
issue that uniquely affects women.
>
> And yes, birth control is often prescribed for reasons other than
contraception, to treat medical conditions including hormonal imbalances
etc.
>
> Rebecca Zietlow
>
>
> ________________________________
> From: Richard Dougherty [doughr at udallas.edu<mailto:doughr at udallas.edu>]
> Sent: Sunday, February 12, 2012 8:40 PM
> To: Marci Hamilton
> Cc: Zietlow, Rebecca E.; Con Law Prof list
> Subject: Re: Contraceptives and gender discrimination
>
> Perhaps I am missing something major here.  Is someone denying women
> their constitutional right to purchase birth control?  Isn't the only
> question here whether women -- or spouses of men -- working for
> Catholic organizations, can get it for "free"?  (Of course it won't be
> free for anyone, as everyone will be paying higher premiums; insurance
> companies aren't in the charity business.)
>
> Prof. Zietlow I think hit upon a very important aspect of this question.
When Viagra was invented/discovered/popularized, and it got insurance
coverage, that did prompt states to pass their requirement for birth control
coverage.  But one (not me) might argue that there was a medical disability
that argued in favor of coverage (is ED covered under the ADA?  I honestly
don't know).  I'm not aware of the comparable argument for birth control,
but I am willing to be educated on it.
>
> Richard Dougherty
> On Sun, Feb 12, 2012 at 6:51 PM, Marci Hamilton
<hamilton02 at aol.com<mailto:hamilton02 at aol.com><mailto:hamilton02 at aol.com>> wrote:
> Rebecca and Lauren are correct.  The bishops are also opposed to
constitutional rights for women and privacy rights generally.  This is just
another plank in their platform on these issues.   It is worthwhile to keep
in mind that this scenario involves constitutional interests on both sides
at every level and there is a great deal at stake for women generally.  To
treat the organization's religious claims as though they are the only ones
to analyze is a gross oversimplification
>
> Marci
>
>
> On Feb 12, 2012, at 7:23 PM, "Zietlow, Rebecca E."
<REBECCA.ZIETLOW at utoledo.edu<mailto:REBECCA.ZIETLOW at utoledo.edu><mailto:REBECCA.ZIETLOW at utoledo.edu>> wrote:
>
> I agree with Lauren that there is a gender equality issue here.  I
understand that in 2000, the EEOC agreed as well, and issued a ruling that
employers who provide insurance coverage for Viagra but deny coverage for
birth control violate Title VII.  The Con law issue is that apparently the
Catholic church challenged this application of Title VII on free exercise
grounds and lost in a couple of lower court rulings.  The only thing
different now is that the Catholic employers are being required to pay for
coverage, but I think Obama took care of that issue with the policy
modification on Friday (others may disagree).
>
> This whole scenario has striong implications for women's rights, including
both sex equality concerns and the constitutional right to use birth
control.  Wouldn't the government's interest in protecting those rights be
sufficiently strong to justify the Obama policy if it was challenged by the
Catholic church as violating the FE Clause?
>
> Rebecca Zietlow
> ________
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