Frederick Mark Gedicks and Andrew Koppelman,
Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause,
67 Vand. L. Rev. En Banc,
Available at: http://digitalcommons.law.byu.edu/faculty_scholarship/285
Can an employer make his employees foot the bill for his religious beliefs? Merely to ask this question is to answer it. “Religious liberty” does not and cannot include the right to impose the costs of observing one's religion on someone else. Indeed, the Supreme Court has consistently interpreted the Free Exercise Clause, the Establishment Clause, and Title VII of the Civil Rights Act of 1964 to forbid permissive accommodations of religion in the for-profit workplace when they impose significant burdens on identifiable and discrete third parties.
In Sebelius v. Hobby Lobby Stores, Inc., however, an employer is claiming that the Religious Freedom Restoration Act (RFRA) excuses it from providing health insurance coverage for certain contraceptives under the Affordable Care Act (the “contraception mandate”), coverage that would significantly benefit female employees and covered female dependents who do not share the employer's religious beliefs. Yet, the women who would be harmed by denial of contraception coverage have been absent from the litigation. Courts have imagined that they are balancing the employer’s religious liberty against some generalized government interest in public health or workplace equality, rather than in the religious and other liberties of actual people whom the Constitution and federal statutes protect from paying the costs of observing their employer’s religious beliefs and practices.
If the Court grants a RFRA exemption to Hobby Lobby, it will initiate a religious accommodation regime in which the religious practices of for-profit employers would be accommodated despite imposing significant costs on their female employees and covered female dependents, while under Title VII those same employers would be almost entirely free from a duty to accommodate the religious practices of those same employees. When a private actor seeks to burden control over reproduction to facilitate that actor’s religious exercise, and the courts don't even notice the dramatic asymmetry that this deprivation would create in religious accommodation law, then they replicate the very religious discrimination they should be eliminating.
There is no conceivable justification for a permissive accommodation regime that is more sensitive to burdens on a for-profit employer's religious beliefs than it is to comparable burdens on the religious and other liberties of that same employer's female employees. Once one realizes that actual women will pay financial and other costs to facilitate Hobby Lobby’s religious exercise, it becomes clear that what Hobby Lobby wants is not religious liberty for all, but only for itself, and even at the cost of religious oppression of others.
67 Vand. L. Rev. En Banc 51