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July 14, 2014

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

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

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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