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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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March 25, 2014 1

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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