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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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July 2, 2014 0

From the Archives: ADL & the Civil Rights Act of 1964 – Part 2

Civil_rights_leaders_WH_meeting_22_June_1963

Abbie Rowe. White House Pho­tographs. John F. Kennedy Pres­i­den­tial Library and Museum, Boston Civil rights lead­ers pose with Attor­ney Gen­eral Robert F. Kennedy and Vice Pres­i­dent Lyn­don B. John­son at a meet­ing at the White House on 22 June 1963. ADL National Direc­tor Ben­jamin Epstein stands to the right of Rev. Mar­tin Luther King, Jr. and Attor­ney Gen­eral Robert F. Kennedy

In Jan­u­ary 1964, two months after Pres­i­dent Kennedy’s death, ADL released its annual report on Con­gress and civil rights, declar­ing that because of Pres­i­dent Johnson’s “unmatched knowl­edge” of Con­gress, “it is now more pos­si­ble to pass” the Civil Rights Act that Pres­i­dent Kennedy had intro­duced in a tele­vised speech the pre­vi­ous year.

On Jan­u­ary 31 Sen­a­tor Edward M. Kennedy, in his first pub­lic appear­ance in New York since the death of his brother, addressed the 51st annual meet­ing of ADL. Sen­a­tor Kennedy told the audi­ence that the civil rights bill “will pass the House unweak­ened” and that only a fil­i­buster could stop a Sen­ate major­ity “ready and will­ing to vote for it.” Ten days later, the House passed the bill by a vote of 290 to 130 and sent it to the Sen­ate, where it met a filibuster.

Soon after the fil­i­buster began, Sen­a­tors Abra­ham Ribi­coff and Jacob Jav­its received ADL’s 1964 Human Rights Award. They spoke about the bill in their accep­tance speech dur­ing the April 9 cer­e­mony, express­ing con­cern about the “‘so-called white back­lash’ on civil rights in the North” and warn­ing that “pas­sage of the Civil Rights Bill would solve no prob­lems unless ‘the ulti­mate respon­si­bil­ity for civil rights’ is accepted by indi­vid­ual Americans.’”

In late April, ADL National Chair­man Dore Schary announced plans to con­vene a meet­ing of 120 Jew­ish busi­ness, pro­fes­sional, and civil lead­ers from all over the United States “to sound an alarm that time was run­ning out” and “to urge that the Bill then under debate be passed with­out weak­en­ing dele­tions and amend­ments.” Said Schary of the Wash­ing­ton, DC, event:

“This meet­ing in the nation’s cap­i­tal is an all-out effort by a group of lead­ing cit­i­zens to aid their coun­try in what they con­sider to be the most crit­i­cal moment in one of the gravest crises in the past cen­tury. They believe that if the Civil Rights Act is not passed soon, the nation faces dan­ger­ous dis­or­der in the com­ing sum­mer months.”

The group, com­prised of judges, munic­i­pal offi­cials, per­form­ers in the arts, finan­cial and indus­trial lead­ers from 30 states, first con­ferred with Admin­is­tra­tion and Sen­ate spokes­men, and then called or met with their home-state leg­is­la­tors. The group also vis­ited Arling­ton National Ceme­tery to “pay their respects to the mem­ory of Pres­i­dent Kennedy and leave a flo­ral spray at the graveside.”

ADL National Direc­tor Ben­jamin R. Epstein later recalled the meet­ing in Not the Work of a Day, not­ing its suc­cess: “[B]y jiminy, it worked, and it was because it was an intel­li­gent approach to lob­by­ing, a per­fectly legit­i­mate way of achiev­ing a pur­pose in a demo­c­ra­tic soci­ety.” Min­nesota Sen­a­tor Hubert Humphrey wrote to say: “I am for­ever grate­ful … for the ADL’s visit to Wash­ing­ton on behalf of the Civil Rights Bill. The busi­ness lead­ers who gave of their valu­able time … per­formed an indis­pen­si­ble ser­vice. I know from con­ver­sa­tions with many Sen­a­tors that their vis­its were truly effective.”

To be continued…

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