Contraceptives and gender discrimination
rs at robertsheridan.com
Mon Feb 13 12:05:40 PST 2012
It's disappointing from this quarter, as well, because some folks take the failure to respect their religion's practice to be off-limits during pointed Conlaw discussion. The fact is that the religious instinct or inclination can attribute religious meaning to virtually any activity, from individual spiritual exercise in private, to church governance, to church activity on the public highway where general laws apply.
The fact is that we do not respect all belief that calls itself religious, starting with Martin Luther. We do not necessarily automatically respect priestly religion over a more direct exercise, and vice versa, starting with the Reformation; what we try to do is to to accommodate them by staying out of their way, from a government and regulatory standpoint, as much as possible.
There are too many examples of rejected 'religious' values for us to do otherwise, from human sacrifice to race-based slavery that was, up to the Civil War, justified by ministers and their followers by resort to religious authority of one kind or another, e.g. the Bible as to the latter.
Seems to me that one of the major distinctions in the context of our discussion is whether the church activity occurs behind church doors (where maximum protection is afforded, in a Youngstown/Robert Jackson sort of analogy) and the least protection is afforded when the church extends its reach beyond the doors of the sanctuary into the secular world, such as driving literally on the public highway, and figuratively by offering some kinds of employment to some people such as church adherents, offering health care, food-care (after Hurricane Katrina, local government was in disarray for a period of time; local churches organized food kitchens that kept people alive until other resources stood back up), education-care (parochial schools), hospital care (hospitals), old-age home care, etc. This is before we get into questions of school-prayer in the public schools, crosses on town hills, creches at City Hall, and Ten Commandments in court houses.
All worthy activities, indeed, referring to the social welfare aspect, but definitely entering not the public square but the public sphere of activity, hence subject more and more to the general laws regulating such activity, general laws enacted not to discriminate against religion in general, nor against the beliefs of religious adherents in particular, and thus subject to regulation; seems to me that churches embarking on such activity realize that there are business and professions laws with which they must comply and that they accept this burden willingly upon entering the field.
Things become a bit more heated and confused during political season, now a year-'round activity, where 'religious' issues become food for the demagogues in all politically active camps which includes some religious advocates. I'm not sure where the lines are drawn between spiritual and secular activity; my guess is that it depends on the religion; the social welfare activities of, say, Christian churches compare with the Islamic pillar of faith to provide charity; it's how one goes about these that involve the secular authorities, as this involves the general law.
It seems important, as many have pointed out in this discussion, to note very carefully whose conscientious ox is being gored, rather than to wonder about generalities not tied to individuals having an ox in the fight.
On Feb 13, 2012, at 11:15 AM, Scarberry, Mark wrote:
> 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 lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] 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.
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