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November 10, 2015 0

Supreme Court to Hear Second Contraception Mandate Challenge

Last week, the U.S. Supreme Court agreed to hear a sec­ond chal­lenge to the Afford­able Care Act’s (“ACA”) con­tra­cep­tion man­date.   This time, mul­ti­ple religiously-affiliated groups are claim­ing that the law’s min­i­mal require­ments for opt­ing out of the man­date vio­late their reli­gious free­dom rights.  Fol­low­ing its own recent prece­dent, the Court should reject these claims.

The ACA requires employer-provided health insur­ance to cover all FDA– approved pre­scrip­tion con­tra­cep­tion at no cost to employ­ees.  Houses of wor­ship and other sec­tar­ian insti­tu­tions are wholly exempted from this require­ment.  Religiously-affiliated orga­ni­za­tions may opt out of the con­tra­cep­tive man­date by merely sub­mit­ting a one-page form or let­ter to the Depart­ment of Health and Human Ser­vices (“HHS”).  In that cir­cum­stance, the health insur­ance com­pany or a third-party admin­is­tra­tor pays for and admin­is­ters the coverage.


Supreme CourtDespite this nom­i­nal require­ment, a num­ber of religiously-affiliated groups filed law­suits claim­ing that this reli­gious accom­mo­da­tion pro­vi­sion “sub­stan­tially bur­dens” their reli­gious exer­cise in vio­la­tion of fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”) because it makes them “con­duits” for pro­vid­ing con­tra­cep­tion cov­er­age.   Last week, the U.S. Supreme Court agreed to hear seven of these cases in one con­sol­i­dated appeal.

Seven of eight U.S. Courts Appeals (lower fed­eral courts) have already rejected such claims, includ­ing the influ­en­tial D.C. Cir­cuit.  It found that the fil­ing of the form or let­ter excuses plain­tiffs “… from play­ing any role in the pro­vi­sion of con­tra­cep­tion ser­vices, and they remain free to con­demn con­tra­cep­tion in the clear­est terms.”  The Court fur­ther deter­mined that the ACA  — not the opt-out notice – oblig­ates health insur­ance com­pa­nies or HHS through third-party admin­is­tra­tors to pro­vide con­tra­cep­tion cov­er­age.  As a result, it cor­rectly con­cluded that:

Reli­gious objec­tors do not suf­fer sub­stan­tial bur­dens under RFRA where the only harm to them is that they sin­cerely feel aggrieved by their inabil­ity to pre­vent what other peo­ple do to ful­fill reg­u­la­tory objec­tives after they opt out.  They have no RFRA right to be free from the unease, or even anguish, of know­ing that third par­ties are legally priv­i­leged or oblig­ated to act in ways their reli­gion abhors.

Although these seven deci­sions should per­suade the U.S. Supreme Court, they are not bind­ing.  But lan­guage in the Court’s own highly prob­lem­atic June 2015 Hobby Lobby deci­sion should dic­tate the out­come this time.  In Hobby Lobby, the Court reached the trou­bling con­clu­sion that for the pur­poses of RFRA it could not dis­tin­guish between a for-profit close cor­po­ra­tion ver­sus a religiously-affiliated group hav­ing a reli­gious objec­tion to the con­tra­cep­tion man­date.  As a result, it ruled that like non-profit religiously-affiliated groups, such close cor­po­ra­tions could opt out of pro­vid­ing con­tra­cep­tion cov­er­age under the man­date.  The Court, how­ever, effec­tively ruled that the opt-out pro­vi­sion was per­mis­si­ble under RFRA, stat­ing that it “… con­sti­tutes an alter­na­tive that achieves all the Government’s aims while pro­vid­ing greater respect for reli­gious liberty.”

Although ADL and oth­ers strongly dis­agreed with the Court apply­ing RFRA to for-profit cor­po­ra­tions by equat­ing them with non-profits, con­sis­tency would dic­tate that it reject religiously-affiliated groups’ chal­lenges to the opt-out pro­vi­sion.  To do oth­er­wise would be con­tra­dic­tory and mean that any bur­den on reli­gion — no mat­ter how triv­ial — could be used by religiously-affiliated groups as a vehi­cle to opt out of fed­eral law or impose their reli­gious beliefs on others.

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September 3, 2015 11

Public Officials: If Your Religion Prevents You From Doing Your Job, Step Aside

Many of us make impor­tant deci­sions in our daily lives grounded in our reli­gious val­ues and beliefs. That should be respected, even per­haps, applauded. How­ever when one chooses to take an oath of office or accepts a posi­tion as a pub­lic offi­cial in a sec­u­lar con­sti­tu­tional democ­racy like ours, she has a respon­si­bil­ity to do the job she was hired to do. Rowan County Ken­tucky Clerk Kim Davis’s job requires her to issue mar­riage licenses to any­one who may legally get married.

LGBT Zip code

On June 26, 2015, the U.S. Supreme Court for­mally rec­og­nized the dig­nity of les­bian, gay, bisex­ual and trans­gen­der peo­ple when it extended the free­dom to marry to same-sex cou­ples nation­wide. The Court ruled that the Con­sti­tu­tion for­bids states to ban mar­riage for same-sex cou­ples. Since the deci­sion, a small minor­ity of pub­lic offi­cials, most notably Ms. Davis, have argued that they should be exempt from hav­ing to issue mar­riage licenses to same-sex cou­ples, cit­ing their sin­cerely held reli­gious beliefs. The Supreme Court dis­agrees, and yet Davis con­tin­ues to defy the Court by deny­ing same-sex cou­ples mar­riage licenses. Now, she and, at her direc­tive, her staff, are refus­ing to issue mar­riage licenses mak­ing it impos­si­ble for any­one to obtain a mar­riage license in that county.

No one should ques­tion or chal­lenge Ms. Davis’s reli­gious beliefs. The fact that some news arti­cles and com­men­ta­tors have crit­i­cized Davis’s beliefs as incon­sis­tent or hyp­o­crit­i­cal is beside the point. The bot­tom line is that she has no right, con­sti­tu­tional or oth­er­wise, to refuse to do the job the state of Ken­tucky pays her to do.

The real­ity, as ADL’s ami­cus brief argued, is that over­turn­ing mar­riage bans ensures that reli­gious con­sid­er­a­tions do not improp­erly influ­ence which mar­riages the state can rec­og­nize, but still allows reli­gious groups to decide the def­i­n­i­tion of mar­riage for them­selves. That remains true. Rab­bis, priests, min­is­ters can­not be com­pelled to par­tic­i­pate in mar­riages of which they do not approve. Reli­gions are not required to sol­em­nize any kind of mar­riage they don’t want to rec­og­nize. How­ever, that does not mean that gov­ern­ment employ­ees may aban­don their duties nor may they seek to impose their reli­gious beliefs on oth­ers by inter­fer­ing with their con­sti­tu­tional right to marry.

If Ms. Davis or oth­ers feel that they can­not ful­fill the duties they were selected to per­form, they should step aside and allow oth­ers to serve the community.

A 501©(3) non­profit orga­ni­za­tion, ADL nei­ther sup­ports nor opposes any can­di­date for polit­i­cal office.

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July 30, 2015 0

Mezuzah Is Fair Housing Decision’s Overlooked Beneficiary

The U.S. Supreme Court’s June 25th favor­able fair hous­ing deci­sion was a big win for the civil rights of all Amer­i­cans, includ­ing Jew­ish con­do­minium own­ers and renters who are pro­hib­ited from plac­ing Mezuzahs on their outer door posts.

A mezuzah is a small, unob­tru­sive object – typ­i­cally less than six inches long and an inch wide – which for mil­len­nia has been placed on the outer door­posts of Jew­ish homes in ful­fill­ment of reli­gious oblig­a­tions.  It is not a dec­o­ra­tive choice for Jews, or a choice of any kind.  Rather, an obser­vant Jew­ish per­son can­not buy, rent or reside in a res­i­dence where place­ment of a mezuzah on the outer door­post is prohibited.

Mezuzah-RS Many con­do­mini­ums, devel­op­ments and rental com­mu­ni­ties are sub­ject to gen­er­ally applic­a­ble aes­thetic or other restric­tions which pro­hibit the dis­play of all reli­gious or sec­u­lar sym­bols on outer door­posts and doors, includ­ing the mezuzah.  In the vast major­ity of these sit­u­a­tions, home­owner asso­ci­a­tions or land­lords accom­mo­date Jew­ish res­i­dents by allow­ing them to post their mezuzahs with­out issue.

How­ever, in the minor­ity of cases where asso­ci­a­tions or land­lords refuse to allow the mezuzah, the Court’s deci­sion is a valu­able legal tool.  In Texas Dept. of Hous­ing v. The Inclu­sive Com­mu­ni­ties Project, Inc., the Court rec­og­nized “dis­parate impact” the­ory under the fed­eral Fair Hous­ing Act.  As a result, gen­er­ally applic­a­ble hous­ing rules or prac­tices that have the effect of unin­ten­tion­ally dis­crim­i­nat­ing on the basis of race, color, reli­gion, sex, famil­ial sta­tus or national ori­gin, includ­ing restric­tions bar­ring dis­play of the mezuzah, vio­late the Act.

In light of the Court’s rul­ing, ADL has issued a new pub­li­ca­tion enti­tled, “Reli­gious Accom­mo­da­tion for the Mezuzah: Your Rights Under Fair Hous­ing Laws,” which in addi­tion to dis­cussing accom­mo­da­tions under fed­eral law cov­ers the four state laws (Con­necti­cut, Florida, Illi­nois and Texas) that specif­i­cally pro­hibit rules bar­ring dis­plays of the mezuzah and other reli­gious sym­bols in outer door areas.

Pro­vid­ing reli­gious accom­mo­da­tions for the mezuzah is a prin­ci­pled and wor­thy prac­tice.   Now that the Court has ruled in favor of dis­parate impact under the Fair Hous­ing Act, home­owner asso­ci­a­tions and land­lords should be on notice that pro­vid­ing such accom­mo­da­tions is not only the right thing to do, but legally required in most instances.

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