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October 23, 2014

HHS Issues Overly-Broad Draft Rule Following Hobby Lobby

The U.S. Supreme Court’s deeply-troubling decision in Burwell v. Hobby Lobby allows certain for-profit, corporations to opt out of the Affordable Care Act’s (ACA) contraception mandate based on religious objections.  In in an effort to comply with the decision, the U.S. Department of Health and Human Services (“HHS”) issued a new proposed rule defining organizations and corporations eligible for religious accommodation similar to those already available to religious nonprofits.  ADL firmly believes that the proposed rule is too broad and recently submitted comments urging a more narrow definition of eligible organizations.  hs-issues-overly-broad-draft-hobby-lobby

The ACA requires employer-provided health insurance to include coverage for the full range of Food and Drug Administration (FDA)-approved contraceptives and health services. Recognizing that contraception implicates religious beliefs, HHS exempted houses of worship and other pervasively-religious employers from the contraception mandate.  It also accommodated religiously-affiliated nonprofits (including schools and hospitals) by creating a mechanism through which employees’ contraceptives are made available by third-party insurers without cost-sharing by the employer or the individuals accessing these services.

Notwithstanding these extraordinary accommodation efforts, owners of secular, for-profit corporations have filled dozens of lawsuits under the First Amendment and Religious Freedom Restoration Act (RFRA) asserting religious objections to the contraception mandate.  These cases culminated in the Supreme Court’s recent Hobby Lobby decision.  ADL joined an amicus (friend-of-the-court) brief to the Court in the case arguing that the connection between an employee’s private decision to utilize contraceptives made available under the ACA is so far removed from an employer (likely entirely unknown), it could not possibly meet the RFRA standard of imposing a “substantial burden” on the religious practices of the corporations’ owners.

However, the Supreme Court’s disturbing decision ruled that RFRA empowers certain private, closely-held corporations to impose their religious beliefs on employees by refusing to include contraceptive coverage in their employee health insurance plans.  Following this decision, HHS issued its proposed new rule for closely held, for-profit corporations – and asked for comments on how to define eligibility for this accommodation.

ADL firmly believes that every woman should have access to the full range of FDA-approved contraceptives, without additional costs.  Our comments on the proposed rule argue that a narrow definition of eligible organizations is necessary in order to limit the number of secular, for-profit owners who could impose their religious beliefs on their employees – and to limit overall litigation.  We also urged that closely-held corporations seeking to opt out of the contraception mandate be required to demonstrate that their religious objections are guided by sincerely-held religious beliefs documented in corporate charters, business practices, policies, and operations.

A final rule is expected in the next few months.

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March 25, 2014

The Hobby Lobby Case – It’s Not Okay To Discriminate In The Name of Religion

This week, the United States Supreme Court will hear oral arguments in two consolidated cases where owners of for-profit, secular corporations challenge the federal Affordable Care Act’s (ACA) contraception mandate as a violation of their religious freedom rights.

The names of the two cases are Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius. hobby lobby

The ACA requires covered employers to provide a full range of preventative health care and screening services, including contraceptives and birth control, in their employer-sponsored health care plans. Referring to the contraception coverage as a “mandate” is actually a misnomer because employers have the option of paying a modest tax instead of providing comprehensive health insurance. And that tax is often less expensive than provision of employee health insurance.

However, recognizing religious sensibilities surrounding contraception and abortion, the Obama Administration worked hard to accommodate differing religious views. The so-called ACA contraceptive mandate does not apply to non-profit religious organizations (like a church or synagogue) and religiously-affiliated organizations (like church-affiliated schools) can easily opt out of the requirement by signing and filing a one-page form.

The fervently-religious owners of Hobby Lobby, a large chain of arts and crafts stores that employs over 13,000 people at over 500 locations, brought suit against the mandate because they object to certain forms of contraception. The Tenth Circuit Court of Appeals upheld their challenge, deciding that the federal Religious Freedom Restoration Act (RFRA) applies to corporations and that the federal government ACA contraceptive mandate substantially burdens the owners’ religious practice.

The owners of Conestoga Wood, a company that employs hundreds of people that makes cabinets and other woodworking products, similarly object, on religious grounds, to providing contraceptives to their employees. However, in this case, the Third Circuit Court of Appeals, in contrast to the Tenth Circuit, decided that for-profit secular corporations cannot engage in religious speech and are therefore not protected under the RFRA.

RFRA requires the federal government to demonstrate a compelling interest where it “substantially burdens” a person’s religious exercise. ADL strongly supported the enactment of this 1993 statute, which was intended to be a shield against religious discrimination. But in this case, the owners of Hobby Lobby and Conestoga are attempting to use RFRA as a sword – giving them license to impose their religious beliefs on others. That undermines the purpose of the statute, and turns religious freedom on its head. There is no doubt that RFRA could not have been enacted into law if it had been anticipated that it would later be used by corporate owners to thwart anti-discrimination laws or the religious freedom of company employees.

ADL joined a coalition brief with a diverse group of more than two dozen faith-based organizations. The brief, prepared by Americans United for Separation of Church and State, argues that applying the conception regulations to the corporations does not substantially burden religion. For-profit corporate entities do not practice religion. And because the legally distinct corporations would actually pay for and provide the comprehensive health insurance, any religious burden on their owners is minimal. Not to mention that the owners have the option of their corporations paying a modest tax instead of providing comprehensive insurance.

The brief further asserts that Americans do not lose their religious freedom when they establish for profit businesses. But the religious beliefs of these employers should not be imposed on third parties – their employees – and the owners’ rights cannot trump the religious rights of their employees.

It would be hard to overstate the stakes for religious liberty and equality in these two cases. The American workforce is highly diverse. Allowing secular corporate owners to restrict access to affordable contraceptives on the basis of religion discriminates against women and limits their equality and independence. Approval of this action by the Court would also be a grave blow to religious freedom in this country – and open the door to the specter of workplace discrimination and for-profit companies denying coverage for other essential medical services that some owners might deem religiously offensive, such as blood transfusions, psychiatric care, and vaccinations.


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February 24, 2014

Governor Jindal’s Dubious Comments on Religious Liberty

According to Louisiana Governor Bobby Jindal, there is a “Silent War on Religious Liberty” in America. 

In recent remarks at the Ronald Reagan Presidential Library, the Governor claimed that this war is being “waged in our courts and in the halls of political power.”  Although “churches in America are not being burned to the ground, and Christians are not being slaughtered for their faith,” he contends that this bloodless war “threatens the fabric of our communities, the health of our public square, and the endurance of our constitutional governance.”  bobby-jindal

Exhibit A in the Governor’s speech evidencing this purported silent war is the Hobby Lobby case currently pending before the U.S. Supreme Court.  In that case, the Governor is supporting owners of for-profit, secular corporations who are challenging the Affordable Care Act’s contraception mandate on religious freedom grounds.

The mandate would require these corporations to provide employees with comprehensive health insurance, inclusive of prescription birth control, or pay a modest tax.  From the Governor’s perspective, these corporate owners should be allowed to impose their religious beliefs about contraception on thousands of employees who likely have diverse religious views on the subject.

Exhibit B is a series of legal cases against bakeries, florists and other wedding service providers who have refused on religious grounds to provide services to same-sex couples.  Here too, Governor Jindal overlooks the fact that many of these couples find support for their marriages in their religious tradition, and could legitimately claim that their religion is being denigrated.

In his speech at the Reagan Library, the Governor also said “… the fact is that our religious liberties are designed to protect people of all faiths.”  Standing alone, this would be a forthright statement on our nation’s cherished constitutional values.  However, given the context of his speech, this remark lacks credibility.  The Governor’s apparent support for certain Christian viewpoints being imposed on our pluralistic workforce, marketplace, and society erroneously supports the use of the Constitution as a sword to advance the majority’s religion rather than a shield to protect the rights of religious minorities or the non-religious.  It is unfortunate that the Governor’s support for religious freedom seems selective rather than universal.

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