More on the ACLU, Civil Liberties, and Antidiscrimination Laws

[DavidEBernstein at aol.com]

I thought ConLawProf readers would find the following exchange from the most 
recent issue of Trial magazine of interest (referencing (Catholic Charities of 
Sacramento, Inc. v. Super. Ct. of Sacramento County, No. S099822, 2004 WL 
370295 (Cal. Mar. 3, 2004).):

The court also rejected Catholic Charities' First Amendment argument, saying 
that the organization could still express its beliefs by encouraging its 
employees not to use birth control.
"That is a very narrow view of religious expression," said David Bernstein, a 
law professor at George Mason University in Fairfax, Virginia, and author of 
You Can't Say That! The Growing Threat to Civil Liberties from 
Antidiscrimination Laws. "Often, expressing your religion consists of living your life by ce
rtain rules." He added, "How can the law craft an exemption for a church, but 
not for that church's charitable arm? The court is essentially saying that 
Catholic Charities is somehow 'not religious enough.' Is that something the 
government should decide?"
"Religious groups have to obey the law," said Louise Melling, director of the 
American Civil Liberties Union's Reproductive Freedom Project, which helped 
craft the exemption to the WCEA and also filed an amicus brief in the case. "If 
you operate in the public sphere and open your doors to the public, you have 
to play by the rules of the public."
Melling drew a distinction between working for a church or a mosque, whose 
employees "accept that institution's religious beliefs and are expected to 
follow them," and working for an organization that offers secular services. The 
latter, she said, should not impose its beliefs on its employees.
"Actually, it's the other way around," countered Bernstein. "Catholic 
Charities is not saying, 'If you work here, you must be a Catholic, you must not use 
birth control.' They're just saying, 'We won't pay for it. If you don't like 
that, you're free to go work somewhere else.' Catholic Charities, however, 
can't just go elsewhere. It doesn't have any recourse, except to deny all 
prescription coverage. And that, too, is against their religious mission, so they are 
really in a bind."
The organization told the court that to deny drug coverage would conflict 
with the Catholic Church's injunction that an employer has "a moral obligation at 
all times to consider the well-being of its employees and to offer just wages 
and benefits."
Said Bernstein, "The basic question is: Is there a compelling state interest 
here that overcomes religious freedom? Are we so concerned that someone has to 
pay a little more for their birth control pills that we would override civil 
liberties?  Surely we should save that step for something more drastic."
But Melling said that religious institutions have sometimes used their 
beliefs to justify discrimination, and "the question of women's equality, women's 
health, and women's dollars is not a trivial matter."


Professor David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste 
blog: http://volokh.com/index.htm?bloggers=DavidB
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My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, has just
been published
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