Contraceptives and gender discrimination

Scarberry, Mark Mark.Scarberry at
Mon Feb 13 11:15:44 PST 2012

I find this discussion to be dispiriting, in part because people I deeply respect, and whom I find in other contexts to be fair and thoughtful, seem to change their entire approach when it comes to these issues.

It is hard to believe that the solution, as Chip presents it, is to require religious charities to engage in more religious discrimination in hiring and then to monitor employees' sexual practices. See the message below. It is also hard to believe that a sensible response is to require Catholics who claim to believe the church's teaching to testify about their own sexual practices, in order to prove the sincerity of their beliefs. From another of Chip's earlier messages: "If secular employers raise a RFRA claim against the contraceptive coverage mandate, shouldn't they be subject to inquiry into the sincerity of their beliefs -- i.e., the extent to which they have complied in their own lives with the teachings about contraception?"

Do we think that everyone who sincerely believes it is wrong to view pornography actually refrains from viewing it? Do we believe that everyone who sincerely believes it is wrong to abuse drugs or alcohol is faithful to that belief and refrains from abusing them? Do we understand that we are dealing with human beings here?

It is less dispiriting but no less disappointing to once again hear the argument from others that there is state action when govt fails to require a person to act. By requiring (on pain of substantial financial penalty) that religious organizations and religious people provide health care, the govt then becomes obligated to require those organizations and people to violate their beliefs? The idea that the govt is responsible for that which it permits, and therefore must limit what it permits (and refuse to grant religious accommodations), is one of the most dangerous ideas in current academia. (It would be truly disastrous were it to become accepted in our society.) Does RFRA then require me to order my life so as not to impose a substantial burden on anyone's religious exercise absent a compelling justification?

Of course, as Doug I think pointed out, lots of waivers have been granted from the ACA's other requirements. It seems to me that the waivers have been granted on an effectively standardless basis. Is there a truly compelling interest in all of this, or is there simply a desire to force ideological compliance on somewhat counter-cultural persons and organizations? It was pretty clear that the California legislature had that intent when it adopted a similar provision (which Catholic Charities may have sidestepped by choosing to be covered by ERISA or by self-insuring - I don't recall how it was handled.)

With best wishes,

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263

From: religionlaw-bounces at [mailto:religionlaw-bounces at] On Behalf Of Ira Lupu
Sent: Monday, February 13, 2012 5:50 AM
To: Marc DeGirolami
Cc: Zietlow, Rebecca E.; Walsh, Kevin; Law & Religion issues for Law Academics; Con Law Prof list
Subject: Re: Contraceptives and gender discrimination

On the burden question -- Religious entities may limit hiring to co-religionists, and then make their best efforts to enforce religious norms against employees.  Doesn't that option make the burden of the HHS policy far less substantial?

I think a common reaction to the religious liberty claim being advanced here is its leveraging effect on employees who are not of the faith.  So even if some faiths have a religious mission to serve others, do they similarly have a religious mission to employ others?  Or is it their religious mission to impede access to contraception by all, whether or not of the faith?  If it's the latter, I don't know why their position is any different from or stronger than taxpayers who don't want to to support what they see as immoral activity by their government.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <>

More information about the Conlawprof mailing list