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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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February 24, 2014 0

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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