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July 14, 2014 0

Hobby Lobby Elicits Varied Editorial Responses

On June 30, the Supreme Court in Bur­well v. Hobby Lobby affirmed the right of family-owned com­pa­nies to deny employ­ees, based on the reli­gious beliefs of the employer, health insur­ance cov­er­age for con­tra­cep­tives. As Pro­fes­sor Erwin Chemerin­sky warned at the ADL’s 2014 Supreme Court Review, the deci­sion could have far-reaching impli­ca­tions for work­ers’ civil and reli­gious rights.newspapers-hobby-lobby

Edi­to­r­ial boards for the nations’ top news­pa­pers opposed the land­mark deci­sion by a 2–1 ratio. Of the fifty news­pa­pers with the high­est cir­cu­la­tion, twenty-five dis­agreed with the Supreme Court’s posi­tion in Hobby Lobby. Thir­teen sup­ported the deci­sion. Twelve offered no opin­ion on the topic.

Of those peri­od­i­cals that opposed the deci­sion, some objected to the Supreme Court’s increas­ing will­ing­ness to grant legal pro­tec­tions to cor­po­ra­tions that tra­di­tion­ally have been reserved for human beings. The Cleve­land Plain Dealer insisted that “cor­po­ra­tions are not ‘per­sons’ who think, breathe and exer­cise first-amendment rights or prac­tice reli­gious beliefs,” and warned that “[t]reating them as if they are will inevitably nar­row free­doms for oth­ers.” The Detroit Free Press called the deci­sion an expan­sion of “the majority’s already inflated notion of cor­po­rate personhood.”

Other oppo­nents view the deci­sion as a set­back for repro­duc­tive rights. The San Jose Mer­cury News crit­i­cized the Court for fail­ing to rec­og­nize the impor­tance of access to con­tra­cep­tives for women’s rights: “World­wide, the sin­gle great­est fac­tor in lift­ing soci­eties out of poverty is women gain­ing the abil­ity to con­trol when they become preg­nant.” The Min­neapo­lis Star Tri­bunesaid that “allow­ing an employer to choose which type of con­tra­cep­tion mer­its cov­er­age reverts to an ear­lier, darker age in atti­tudes about women’s role in reproduction.”

Still oth­ers fear that the deci­sion opens the door to fur­ther ero­sion indi­vid­u­als’ rights and gov­ern­ment entan­gle­ment in the exer­cise of reli­gion. The New York Times called the deci­sion “a rad­i­cal depar­ture from the court’s his­tory of resist­ing claims for reli­gious exemp­tions from neu­tral laws of gen­eral applic­a­bil­ity when the exemp­tions would hurt other peo­ple.” USA Today warned of the “deeply dis­turb­ing propo­si­tion” that the deci­sion could force the gov­ern­ment to judge “whether a business’s reli­gious prin­ci­ples merit spe­cial treat­ment that its more sec­u­lar com­peti­tors don’t get.” The Wash­ing­ton Post urged Con­gress to limit the dam­age of the deci­sion by leg­isla­tively over­turn­ing it.

Sup­port­ers, how­ever, hail Hobby Lobby as a bold recog­ni­tion of reli­gious lib­erty. The Wall Street Jour­nal called the deci­sion “an impor­tant vin­di­ca­tion of reli­gious lib­erty in this (still, bless­edly) con­sti­tu­tional repub­lic.” The New York Daily News cel­e­brated that Court’s con­clu­sion that “own­ers of closely held com­pa­nies should not be forced to sac­ri­fice their reli­gious lib­erty sim­ply because they incor­po­rated to do business.”

How­ever one views the Court’s deci­sion, Hobby Lobby clearly touches on many polit­i­cal and legal fault lines. The ADL believes that the deci­sion threat­ens many anti-discrimination laws and will work to limit its impact.

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July 11, 2014 0

Order in Wheaton College Case Raises More Concerns About Hobby Lobby

On the heels of the deeply trou­bling and con­tro­ver­sial Hobby Lobby deci­sion, the Supreme Court on July 3rd issued another dis­turb­ing order in a chal­lenge to the Afford­able Care Act (“ACA”) con­tra­cep­tion man­date.  This order, cou­pled with the Hobby Lobby deci­sion, indi­cates that the Court may be effec­tively strik­ing a cen­tral require­ment from an impor­tant reli­gious lib­erty law – the fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”).  That require­ment is that some­one claim­ing pro­tec­tion under the law must show that his or her reli­gious prac­tice was sub­stan­tially bur­dened.supreme-court-civil-rights

In Wheaton Col­lege v. Bur­well, a religiously-affiliated col­lege that opposes cer­tain forms of birth con­trol is chal­leng­ing the process by which they indi­cate to the gov­ern­ment that they qual­ify for an excep­tion to the con­tra­cep­tion man­date. This excep­tion allows reli­gious, non-profit employ­ers such as the col­lege, to opt out of pro­vid­ing employee health insur­ance that cov­ers con­tra­cep­tion.  But, iron­i­cally, the col­lege claims that apply­ing for this excep­tion (which involves com­plet­ing a two-page gov­ern­ment form) vio­lates its rights under RFRA, which was the same law that for-profit cor­po­ra­tions suc­cess­fully used to chal­lenge the man­date in the Hobby Lobby case.  In the July 3 order, the Court employed a rarely used legal mech­a­nism to tem­porar­ily block imple­men­ta­tion of the excep­tion while the case is still under appeal.

RFRA requires the fed­eral gov­ern­ment to demon­strate the most strin­gent con­sti­tu­tional stan­dard when it imposes a “sub­stan­tial” bur­den on a person’s reli­gious exer­cise.   As ADL pointed out in its ami­cus (friend-of-the-court) brief to the Supreme Court in the Hobby Lobby case, RFRA’s use of the term sub­stan­tial is not an acci­dent, but was included to make clear that the statute’s strong pro­tec­tions could not be trig­gered by inci­den­tal or minor bur­dens on reli­gion.   In fact, the Sen­ate Report on RFRA states that Con­gress added the term so that the law “would not require [a com­pelling gov­ern­ment inter­est] for every gov­ern­ment action that may have some inci­den­tal effect on reli­gious institutions.”

Based on this report and other prece­dent, the brief ADL joined in Hobby Lobby argued that the sec­u­lar, for-profit cor­po­rate plain­tiffs were not eli­gi­ble for RFRA’s pro­tec­tions because, among other rea­sons, any bur­den on their reli­gious exer­cise was inci­den­tal and not sub­stan­tial.  Unfor­tu­nately, the Court did not agree with ADL’s argu­ment.  It ruled that appli­ca­tion of the con­tra­cep­tion man­date to the cor­po­ra­tions did sub­stan­tially bur­den their reli­gious exer­cise and vio­lated RFRA.

The Court’s sub­se­quent action in the Wheaton Col­lege case ren­dered this mis­guided con­clu­sion even more ominous.

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July 3, 2014 0

From the Archives: ADL & the Civil Rights Act of 1964 – Part 3

On June 10, 1964, a year after Pres­i­dent Kennedy first intro­duced the Civil Rights Act to the nation in a tele­vised address, a coali­tion of 44 Democ­rats and 27 Repub­li­cans voted for clo­ture, which lim­ited fur­ther debate and ended the 57-day fil­i­buster of the bill.

ADL had lob­bied for the bill in the months prior, includ­ing orga­niz­ing a meet­ing of 100 Jew­ish busi­ness, pro­fes­sional, and civic lead­ers from all over the United States, who met in Wash­ing­ton, DC, and urged their home-state Sen­a­tors to take action towards pas­sage of the bill.

In a press release react­ing to the Senate’s vote for clo­ture, ADL National Chair­man Dore Schary stated:

The vote on the clo­ture rule which now assures pas­sage of the Civil Rights Act is a vic­tory for all who love jus­tice and love an Amer­ica con­ceived in lib­erty. It is a defeat for no one except those who would pre­vent Amer­ica from achiev­ing its ulti­mate dream… For the thou­sands of civil rights lead­ers and for the coun­try as a whole, the final pas­sage of the Civil Rights Bill will pro­vide new oppor­tu­ni­ties, which they dare not squan­der, to help our Negro cit­i­zens achieve a full mea­sure of their rights as Americans.

The Civil Rights Act passed the Sen­ate with a vote of 73–27 on June 19.

On June 21, the same day on which three civil rights work­ers were kid­napped and mur­dered in Mis­sis­sippi, the Illi­nois Rally for Civil Rights was held at Chicago’s Sol­dier Field. The Anti-Defamation League was among the spon­sors of the rally, which fea­tured the Rev­erend Mar­tin Luther King, Jr. The rally was planned to urge pas­sage by the Sen­ate, but was ulti­mately anti-climactic, as pas­sage by the House was the immi­nent. ADL’s Mid­west Direc­tor A. Abott Rosen described the day:

There was no ques­tion of Jew­ish par­tic­i­pa­tion, there were no sus­pi­cions on the parts of blacks of Jews or other whites on this glo­ri­ous day. We didn’t take a head count of the num­ber of blacks and the num­ber of wSigning_of_Civil_Rights_Acthites present in Sol­diers Field that day, but to my eye, I would sug­gest that the group was almost equally divided.

On July 2, the House of Rep­re­sen­ta­tives voted by more than a two-thirds mar­gin (289–126) to adopt the Senate-passed ver­sion of the Civil Rights Act. That day, Pres­i­dent John­son signed the bill in a nation­ally broad­cast ceremony.

ADL’s National Pro­gram Direc­tor Oscar Cohen later recalled:

The ques­tion arose in ADL cir­cles fre­quently as to why ADL was so totally involved with the strug­gle for equal rights for blacks … First, we claimed, that no minor­ity was safe unless all minori­ties were and prej­u­dice and dis­crim­i­na­tion could not be cured in our soci­ety unless the cure related to all minori­ties … if civil rights laws were passed, such as fair employ­ment and fair hous­ing laws, they would at one stroke elim­i­nate dis­crim­i­na­tion against all groups, includ­ing Jews.

Today, ADL is help­ing to lead a very large coali­tion work­ing to fight dis­crim­i­na­tion, pro­mote equal­ity, and pro­tect the same vot­ing rights for which civil rights work­ers Michael Schw­erner, Andrew Good­man, and James Chaney gave their lives. The League is urg­ing broad sup­port for the Vot­ing Rights Amend­ment Act of 2014 (VRAA), which would cre­ate a new for­mula for pre-clearing vot­ing rights changes.

Fifty years later, ADL com­mem­o­rates the Civil Rights Act of 1964 as a para­mount step towards our core value “to secure jus­tice and fair treat­ment for all” and reaf­firms our ded­i­ca­tion to con­tinue the fight in the ongo­ing strug­gle for equality.

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