I may have more to say on this point later, but for now this'll have to suffice:
First, Doug may be correct that there is no doubt about what the Church's teaching is about the morality of *contraception use. *But there sure is plenty of doubt, as Eduardo noted, about whether the Church, or Notre Dame, or Notre Dame's leadership, or any serious Catholic student of the doctrine of cooperation with evil, actually believes what ND's lawyers are arguing about an alleged religious prohibition on Notre Dame's actions in exercising the religious accommodation. (Whether and how the courts might inquire into that question is a different matter, of course.) Having said that, I agree with Doug and Mark Scarberry that it would be deeply inappropriate for courts to inquire into the sexual practices of university personnel, because I think it's fair to assume that Notre Dame sincerely believes (as much as an institution can have beliefs) that contraception is (in the words of its Vice President's affidavit) a "serious moral wrong." And this would be so even if Marci were correct that many ND officials and administrators themselves use contraception. For one thing, those individuals may consider themselves to be engaged in serious moral wrongs. (As Mark wrote: "Consistency is not a requirement of sincerity.") Moreover, even if some such *individuals* disagreed that contraception is a serious moral wrong, their views are not those of the University. On the other hand, it does seem to me relevant that that Notre Dame has *publicly *acted in ways that might be thought to call into question *not *the sincerity of its belief about contraception, but the *depth*, or* substantiality,* of that sincere belief, i.e., how *important* this particular religious commitment is to Notre Dame. (And this is so even before we get to the question of how ND might possibly be complicit in sin.) For example, although ND does instruct its students that they may not have pre-marital sex, the school (quite understandably, and commendably) does little to enforce that rule. Also, as Judge Posner noted, it does not insist that its employees not use contraception. Nor did it even bother to check, for many years, whether its health insurance plans included contraception--it's my understanding (I could be wrong about this) that ND never mentioned to Aetna and Meritain that they should exclude such coverage, and that the issue was never one ND gave much attention to -- until President Obama made it a public issue. Moreover, as Posner also noted, when Meritain last month told ND employees that they may now get reimbursement for contraception through Meritain, Notre Dame apparently did not urge its employees to refrain, or inform them that it would be morally wrong for them to use contraception. And it "ungrandfathered" its health plans, even knowing that that meant it would be covered by the contraception rule. Again, I don't think these actions call into question ND's sincerity about its view that contraception is a serious moral wrong. And I would not criticize Notre Dame for acting as it has (to the contrary, I think that in some of these cases its forbearance is admirable). But these actions do at least raise a serious question about the relative *depth *of ND's conviction, which should, I think, bear on how *substantial* the burden would be if and when a law regulated the conduct in question. That is to say, although consistency is not a requirement of sincerity, it sure is a good indicator of depth of conviction, and thus of the degree to which the law would affect the person's religious conduct. Shouldn't courts be able to look at how *consistently one acts in accord with one's religious conviction* as a means of determining how substantial the burden is if and when the state places pressure on the person to deviate from that conviction? To be sure, inconsistent conduct might in some cases demonstrate insincerity. But much more frequently, I think, it will demonstrate "only" that the person in question herself, for whatever reason, does not treat a sincere religious commitment as something deeply important to her. (Like everyone else, for instance, I treat some of my religious convictions much more seriously than others, in the sense that I go to much greater expense and trouble to adhere to them.) And if the person has been unwilling to pay a cost herself in the service of that religious obligation -- if she regularly puts that commitment aside when adherence to it would be modestly costly or inconvenient or inappropriate for other reasons, for example -- shouldn't that have some bearing on whether the state should be required to shift the costs to others in the service of that same religious commitment? On Sun, Feb 16, 2014 at 3:45 PM, Douglas Laycock <dlayc...@virginia.edu>wrote: > No doubt the Board and senior administration speaks for Notre Dame. But on > faith and morals, they may (and may be expected to or required to) take > their guidance from the bishops. There is no doubt what the Church's > teaching is, and no doubt that teaching is sincere. What I said was that > Notre Dame's leadership may sincerely feel obliged to follow that teaching > in their official capacity as leaders of a Catholic institution, whatever > they may do in their private life. > > > > Douglas Laycock > > Robert E. Scott Distinguished Professor of Law > > University of Virginia Law School > > 580 Massie Road > > Charlottesville, VA 22903 > > 434-243-8546 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com > *Sent:* Sunday, February 16, 2014 3:14 PM > > *To:* religionlaw@lists.ucla.edu > *Subject:* Re: Notre Dame-- where's the complicit "participation"? > Sincerity > > > > Is Doug correct as a legal matter that the bishops speak for Notre Dame, > as opposed to its officials, and the officials' actions are irrelevant? And > that the actions of its co-religionist officials are irrelevant to proof > of the organization's beliefs? Why don't the practices of Notre Dame's > officials prove insincerity in this case? (I'm assuming that they don't > have the 10-20 children > > typically incident to not using birth control and that they follow the > vast majority of American Catholics in rejecting the belief against > contraception). How can they claim > > a right not to provide contraception for their employees/students in their > health plan because of complicity if they are using it themselves? > > > > To provide an analogy: In the prison cases, you can test a prisoner's > sincerity when he demands kosher food (because it's better than the usual > fare), > > and claims a conversion to Judaism, but they find pork rinds in his cell, > it is assumed he is not sincere and does not receive the accommodation (a > state > > prison general counsel provided this example for me) > > > > Marci > > > > > > > > Marci A. Hamilton > Paul R. Verkuil Chair in Public Law > Benjamin N. Cardozo School of Law > Yeshiva University > 55 Fifth Avenue > New York, NY 10003 > (212) 790-0215 > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. >
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
