Category Archives: Economic Substantive Due Process

Powers ch 10, Short Course ch 10

New Arizona bill allows employers to deny contraceptive coverage based on moral objections

The State Press[1] reported (March 13, 2012) on Arizona House Bill #2652.  Majority Whip Debbie Lesko (R) introduced this bill that grants employers the power to deny health care coverage for contraception based upon the employer’s religious beliefs.  This bill, passed out of the Arizona Senate Judiciary Committee 6-2, is a clear reaction to the federal controversy over requiring employers to provide health insurance coverage for birth control.  In the case of the federal legislation, after Catholic bishops expressed outrage, the Obama Administration offered a compromise that allows institutions, such as charities or hospitals, that are run by the Catholic Church to opt out; insurance companies themselves would still cover contraception.[2]   The bishops are not satisfied with the compromise and are pushing for a broader exemption to include all businesses owned by Catholics.[3]  House Bill #2652 essentially implements this religious exemption to the contraceptive mandate included in the Affordable Care Act at the state level.

The Arizona bill, if passed, broadens that state’s 2002 Contraceptive Equity Law.[4]  Supporters of the measure frame this bill as protecting religious freedoms, arguing that employers should not have to violate their religious beliefs in order to run a business.[5]   This argument clearly places free exercise of religion on one side of a scale in terms of judicial balancing.  However, what do we place on the other side of the scale?  Would this law violate the equal protection clause?  The only employees subject to this restriction and required to share their medical records, information that potentially places them at risk for dismissal for their personal sexual behavior, are women.  It is a state law that provides employers with a reason to deny coverage and demand ‘a doctor’s note’; is this state action?  The situation is somewhat reminiscent of Shelley v. Kraemer (1948).  In Shelley, the Court determined that restrictive housing covenants were unconstitutional under the equal protection clause; the contracts were private, but the enforcement mechanism was the state judicial system.  This connection provided a basis for sufficient state action to bring the private contracts within the reach of the equal protection clause. Likewise, without the support of the state law, employers would not be able to demand medical records for all female employees seeking coverage for their contraceptives.   So, perhaps the equal protection clause can be balanced against the free exercise clause.[6]

Given that the law allows employers to ask for proof of non-reproductive use for insurance coverage of contraceptives, is there also a right to privacy claim vying against the free exercise claim?  Does one person’s religious objections outweigh medical privacy?  This aspect of the right to privacy is one of the least controversial.  You have a right to refuse medical treatment and, under the Health Insurance Portability and Accountability Act (2003),  you have a right to preserve the privacy of your medical records.  The only people with access are ones that you approve.  Under this state law, women would have to provide access to their employers, whether they wanted to or not, if they want coverage for non-reproductive birth control.[7]

My final thoughts about this proposed law and its implication for women’s rights is whether the right to free exercise or prohibition against the establishment of religion rests on the other side of the scale.  Lesko stated that, “We don’t live in the Soviet  Union…So government should not be telling organizations or mom and pop employers to do something against their moral beliefs.”  But under the proposed Arizona law, employers may gain access to their female employees’ private medical records to determine if their health insurance claims include the cost of contraceptives.  This knowledge might well have consequences for the employee, if the employer does not approve of the implications of such information.  In these cases, does the employee have similar rights?  Or does an employee, in order to have the benefit of income and insurance, have to live by the moral standards of their employer?  How far does that standard extend?  Dress codes, drug testing, and general professionalism are all deemed acceptable infringements on rights in most contexts, but can an employer demand that her workers attend church or a specific church?  Fire or refuse to hire divorced individuals?   Is the state, by empowering the moral or religious beliefs of the employer over the employee, supporting or endorsing one religion over others?

[1] -judiciary-committee-endorses-controversial-contraceptive-bill/

[4] This law provides a limited exception to contraceptive coverage for religious employers that employ or service like-minded individuals or non-profits.  Prescriptions for contraceptives for treatment of diagnosed conditions (i.e. endometriosis) cannot be curtailed. ( accessed on March 15, 2012.)

[5] Additionally, it has been suggested that since Arizona is an ‘at will’ state in terms of employment, women could be fired for seeking contraception unless it’s for a medicinal purposes. (see accessed in March 15, 2012.)

[6] There is also the issue that only employees with employers posing religious objections would be subject to the additional scrutiny.

[7] Of course, this leads to an additional question of federal pre-emption.  Has the federal government left any room for state authority given the breadth and scope of both HIPAA and the ACA?  This question cannot be fully addressed until after the Court decides if the ACA and/or the individual mandate are constitutional.


Leave a comment

Filed under Discrimination, Economic Substantive Due Process, Federalism, Religion, The Right to Privacy

Sewer Taxes & Gay Rights?

On November 14th, the Supreme Court docketed an equal protection case out of Indiana, (Armour v. Indianapolis).  The case deals with a city’s decision to forgive some sewer taxes and not others.  Indianapolis passed a sewer levy in 2004 that applied to some properties within the city.  The City gave these property owners a choice—pay the entire tax at once or do so in monthly payments.  Some owners chose the former and others the latter.  A year later, the Indianapolis Board of Public Works decided to alter their system of paying for sewer improvements and forgave the outstanding payments left from the old system, but would not provide refunds, partial or otherwise, to the property owners who paid the full amount (a little over $9,000).[1]

It should not be surprising that this decision led to a lawsuit.  The property owners won at the trial court, but then lost upon appeal to the Indiana Supreme Court. According to precedent, the appropriate standard of review for an economic equal protection claim is rational basis.[2]  Both state courts applied this level of scrutiny, but the judges came to different conclusions.  Of the five justices on the Indiana Supreme Court, one dissented, holding that the state did not manage to meet even the extremely lenient rational basis test.  Given the deference provided to government under the rational basis test, this dissent is out of the ordinary.

And that same deference makes the grant of cert interesting in and of itself.  After all, if the Court reverses it provides a precedent for overturning economic regulations or laws based upon the equal protection clause that seemed foreclosed by San Antonio Independent School District v. Rodriguez 411 US 1 (1973).  Either way, the majority and dissenting opinion from the Indiana Supreme Court may force the Court to face a discrepancy in the application of rational basis created by the decision in Romer v. Evans 517 US 620 (1996).

In the majority opinion in Romer, Justice Kennedy made it clear that he was applying the rational basis test.  And in his majority opinion in Lawrence v. Texas 539 US 558 (2003), Kennedy implied that if he did examine the Texas sodomy statute under equal protection, it, too, would fall under rational basis.

As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause.  That is a tenable argument…(539 US 574)

Evan Gerstmann argues that in Romer it is clear that Kennedy is holding Colorado to a fairly high standard despite the ‘rational basis’ rhetoric.

We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U.S. 312, 319-320, 125 L. Ed. 2d 257, 113 S. Ct. 2637 (1993). Amendment 2 fails, indeed defies, even this conventional inquiry. (Romer v. Evans 517 US 631-32).

Evan Gerstmann suggests that Kennedy is actually applying second order rational basis much the same as the Court did in City of Cleburne v. Cleburne Living Center 473 US 432 (1985). [3]  In the latter case, the Supreme Court struck down a city ordinance preventing the establishment of a group home based upon the rational basis test.  Justice Marshall wrote separately to make clear that there was certainly a minimal rational basis for the law and that the test applied was something more—dubbing it ‘second-order rational basis’.  Gerstmann contends that the Court applied this ‘second-order’ or ‘rational basis with teeth’ in Romer; as it seems that Justice Scalia agrees.  As he points out in his dissent, at the time of Romer, Bowers v. Hardwick 478 US 186 (1986) was still good law.  In Bowers, the Court held that government makes no constitutional wrong by defining homosexual sexual conduct as a crime.[4]  Thus if precedent allows the criminalization of homosexual conduct, it must also allow the barring of preferential treatment under the law for homosexuals as a class.  (517 US 640)

How does the line of cases dealing with homosexual conduct and protection relate to an economic equal protection case involving sewer taxation?  Given that the opinion by the Indiana Supreme Court finds three interests[5] served by the change in law regarding sewer taxes, it is hard to see how Indianapolis cannot pass that lowest of hurdles—rational basis—set out in Williamson v. Lee Optical  348 U.S. 483 (1955): “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.”[6]  Yet, the Supreme Court has docketed this case and it hardly seems like a case that would be docketed simply to affirm on a Court with such miserly allocation of space on its oral argument calendar.  If the Court has accepted this case to reverse, as has been a noted trend dubbed the ‘error correction strategy’, and they apply second order rational basis to nullify the state Supreme Court ruling, what are the implications for future changes in the standards for economic equal protection questions?

It will be interesting to listen to the oral argument and see which form of rational basis is applied to the Indianapolis ordinance, and if the Court acknowledges the differential standard.

On June 4th, the Supreme Court upheld the city’s decision using the rational basis test.  The ruling was 6-3.  For more information see

[1] The property owners involved in the suit were involved in one of 40 programs under the old law.  No property owners received refunds from any of the projects regardless if they paid in full upfront or had paid large amounts via the installment plan.

[2] See page 579 of the Rights, Liberties and Justice text citing McGowan v. Maryland (1961).

[3] See Chapter Six, The Constitutional Underclass: Gays, Lesbians, and the Failure of Class-Based Equal Protection. 1999.  University of Chicago Press.

[4] This case was later overturned by the majority decision in Lawrence v. Texas in 2003.

[5] The three interests found were: 1) the previous funding method “imposed financial hardships on middle- and low-income property owners; 2) moving to the new method for funding sanitation improvements simplified the collection of sanitary sewer funding; 3) providing no refunds preserved limited governmental resources.

[6] See page 387 of the Rights, Liberties, and Justice text.  Williamson and this quote are used to define the rational basis test.

Leave a comment

Filed under Discrimination, Economic Substantive Due Process