Contraceptives and gender discrimination

[Crowley, Donald]

I also find some of the discussion dispiriting but obviously for
different reasons than Mark.  I agree with John Humbach that much of the
problem stems from our inability as a political system to offer basic
health care to people on the same basis as most democratic nations.
This is precisely why many of us wanted at a bare minimum a "public
option" in the ACA.  Instead the politics of the issue force us to offer
a piecemeal system where health care is funneled to people through
employers which include large private organizations like churches.  I'm
all for religious pluralism but just like Mark is appalled by some of
what he interprets Chip to want (I thought some of that wasn't presented
as a serious option) I'm appalled by Mark's notion that religious
liberty as filtered through an organized religious hierarchy trumps the
ability of an employee to obtain basic health care for decisions as
fundamental as contraception.  I'm not sure the state action argument
helps here but certainly we've long accepted the notion that in their
capacity as employers government can require private entities to adhere
to certain regulations.  There are all sorts of secular rules that
religious hospitals must adhere to.  This is an example.  Letting
religious organizations opt out of such secular rules anytime they have
a "sincere" religious objection makes me want to start quoting Scalia in
Smith.  I find Mark's comment that "the idea that government is
responsible for what it permits and therefore must limit what it
permits... is one of the most dangerous ideas in academia" ironic.  This
was exactly my reaction when conservatives (including some Democrats)
almost derailed the entire ACA on the grounds that some money somewhere
might actually end up being used to indirectly help someone obtain an
abortion (this despite the continuing existence of the Hyde Amendment).

 

Take Care

 

Don

 

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Monday, February 13, 2012 11:16 AM
To: Con Law Prof list
Subject: Contraceptives and gender discrimination

 

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

 

Mark S. Scarberry

Pepperdine Univ. School of Law

Malibu, CA 90263

(310)506-4667

 

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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