Friday, March 28, 2014
Commentary on Hobby Lobby
Balkinization: Religious Accommodations Cost More than Money, by Kara Loewentheil:
Yesterday the Supreme Court heard arguments in the consolidated cases ofHobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children).
This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” . . .
In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. . . .
Balkinization: Do The Rights of Employees Count?: The Supreme Court Hears Oral Argument in Hobby Lobby, by David Gans:
Hobby Lobby is shaping up to be the most important free exercise of religion case the Supreme Court has heard in a very long time. It’s also emerging as a key test for Justice Anthony Kennedy and his vision of individual liberty. Will Justice Kennedy recognize that Hobby Lobby’s employees, who seek to protect their health and control their reproductive lives, are entitled to enjoy federal guarantees that safeguard women’s liberty and personal dignity by ensuring access to the full range of contraceptives? . . .
Allowing employees to exercise their rights does not place an unfair burden on employers. Consider: If an employer's religious views necessitated women to wear head scarves, would that employer be allowed to impose their beliefs on female employees?
Posted by: Debra | Mar 29, 2014 2:22:46 PM