July 18, 2014
Hobby Lobby: A Concern, a Prediction, and a Question (Maybe Two)
Posted by Jayne Barnard

Thanks to all who have contributed such interesting and thoughtful posts to this discussion.   We will be talking about the impact of Hobby Lobby for a long, long time. 

My comments are brief, and not lofty.  I am a pragmatist.   

1.   Is there any hope for a work-around to ensure that employees of closely-held corporations that claim a religious exemption from the contraceptive mandate can get free or inexpensive access to the morning after pill and IUDs?  Slate claims that, as a result of Hobby Lobby, "tens of millions" of employees are at risk of losing access.   Even if, as I suspect, that number is highly inflated, the financial and political costs of providing access may well be insurmountable.  Certainly, insurance companies are not going to give coverage away for free.   

Sadly, Justice Kennedy’s claim that “an accommodation may be made to employers without [imposing] a burden on the government” is remarkably naïve.  (Yes, this is the same Justice Kennedy who, in Citizens United, said that there is nothing about allowing corporate political contributions that cannot be corrected "through the procedures of corporate democracy.") 

 2. Justice Alito writes in the majority opinion that  “[w]e do not hold…. that for-profit corporations and other commercial enterprises can 'opt out of any law ... they judge incompatible with their sincerely held religious beliefs.'"  He specifically pooh poohs the notion that corporations whose shareholders oppose on religious grounds the hiring of people of color could ever prevail on a RFRA claim.  (How interesting that he writes that anti-discrimination laws based on race serve a compelling governmental interest, but says nothing about anti-discrimination laws based on sex, religion, national origin, age, or disability.  More importantly, he says nothing about state laws that prohibit employment discrimination based on sexual orientation.)  Perhaps the Becket Fund, whose lawyers are very, very savvy, will not bring actions challenging Title VII or state law requirements on religious grounds, but others surely will.  Employment discrimination wrapped in religious conviction will be the next explosive litigation minefield.  (And, the baton will be passed from the Glom to employment law blogs.)

3.  Will HHS provide a list of closely-held corporations that seek exemption from the contraceptive mandate?  The White House announced yesterday that these corporations must be transparent with their employees, which seems a no-brainer.  Shouldn't these corporations also be transparent with their customers and the public?  Can such a list be provided by HHS without Congressional authorization?

 

 

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