Invisible Women

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, especially in the for­-profit workplace. Until Hobby Lobby Stores, Inc. v. Sebelius, this was a basic and unquestioned aspect of the law of freedom of religion. The Establishment Clause forbids accommodations of religion in the for-profit workplace that impose significant burdens on identifiable and discrete third parties. In Hobby Lobby, a group of employers are demanding the right to refuse health insurance coverage of contraception needed by women who do not share the employers’ religious beliefs.  Upholding the exemption would shift the cost of accommodating Hobby Lobby’s religious beliefs about contraception to those women. Such cost-shifting violates the Establishment Clause.

Frederick Mark Gedicks, Jr. and I make this argument in a new essay, "Invisible Women:Why an Exemption for Hobby Lobby Would Violate the Establishment Clause."  It is part of a roundtable on Hobby Lobby just published online in Vanderbilt Law Review En Banc.

The article is available here.