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April 3, 2015 6

Arkansas’ and Indiana’s Fixes to “Religious Freedom” Laws are Illusory

Arkansas’ and Indiana’s pas­sage of dis­crim­i­na­tory “reli­gious free­dom” laws was met with national back­lash from civil rights groups, the busi­ness com­mu­nity, and oth­ers.  Under intense pub­lic pres­sure, both state leg­is­la­tures made “fixes” to these laws, which their respec­tive Gov­er­nors promptly signed.   But these revi­sions are illu­sory and do lit­tle to mit­i­gate the harms of these laws.

Nei­ther of the orig­i­nal Arkansas or Indi­ana mea­sures men­tioned sex­ual ori­en­ta­tion or dis­crim­i­na­tion. Under the guise of reli­gious free­dom, how­ever, both allowed busi­nesses and employ­ers to dis­crim­i­nate against the LGBT com­mu­nity, as well as against reli­gious and eth­nic minori­ties, by pro­vid­ing them with a vir­tu­ally insur­mount­able religious-based legal defense.Arkansas-StateSeal.svg

Pro­po­nents of these laws erro­neously claimed that they were mod­eled on the 1993 fed­eral Reli­gious Free­dom Restora­tion (“RFRA”).  That RFRA, which the Anti-Defamation League sup­ported, was much nar­rower and explic­itly designed to pro­tect indi­vid­u­als and faith-based insti­tu­tions’ reli­gious exer­cise from gov­ern­ment infringe­ment.   It was never meant to apply to for-profit enti­ties or pri­vate dis­putes, or to enable enti­ties to dis­crim­i­nate against indi­vid­u­als in the name of “reli­gious freedom.”

Indiana’s fix to its law pro­hibits busi­nesses from deny­ing ser­vices to cus­tomers based on sex­ual ori­en­ta­tion or gen­der iden­tity.  And Arkansas’ revi­sion now tracks the lan­guage of RFRA and states that it should be inter­preted con­sis­tent with the fed­eral law.  While these fixes may make good media sound bites, they are misleading.

The revised Indi­ana law does not pro­vide statewide civil rights pro­tec­tions for the LGBT com­mu­nity or pre­vent its use to harm oth­ers.  Because the state does not have an inclu­sive anti-discrimination statute, and because the vast major­ity of Indi­ana cities and towns lack local civil rights pro­tec­tions for the LGBT com­mu­nity, busi­nesses and employ­ers remain free to dis­crim­i­nate on the basis of sex­ual ori­en­ta­tion or gen­der iden­tity.   Even with this fix, the Indi­ana law still pro­vides a pow­er­ful religious-based defense to indi­vid­u­als and busi­nesses in civil and crim­i­nal actions, and infringes on the rights of oth­ers.  For exam­ple, a police offi­cer could refuse to pro­tect a casino, liquor store, phar­macy, butcher shop, lend­ing insti­tu­tion, or women’s health clinic.


The amended Arkansas law is per­haps more disin­gen­u­ous.  Although it is now con­sis­tent with RFRA, the U.S. Supreme Court’s deeply dis­turb­ing Hobby Lobby deci­sion expands RFRA’s pro­tec­tions to for-profit, closely held cor­po­ra­tions (rang­ing from small busi­nesses to nation­wide com­pa­nies like Hobby Lobby).  And a 1999 fed­eral U.S. Court of Appeals deci­sion applic­a­ble to Arkansas ruled that RFRA applies to pri­vate disputes.

So a fam­ily owned busi­ness, large or small, can invoke the new law’s pow­er­ful defense in vir­tu­ally any civil action, includ­ing claims of dis­crim­i­na­tion or wrong­ful denial of ser­vice, employ­ment or hous­ing.  Keep in mind, 96.6% of Arkansas’ employ­ers are small busi­nesses.  Trans­la­tion: the vast major­ity of Arkansas’ busi­nesses can use the law to deny ser­vices, employ­ment, and hous­ing to the LGBT com­mu­nity and other minori­ties.  Mak­ing mat­ters worse, Arkansas has no state-wide civil rights pro­tec­tions for the LGBT com­mu­nity, and it recently enacted another law bar­ring local gov­ern­ments from pro­vid­ing such pro­tec­tions for their residents.

To truly rem­edy the harm­ful effects of their so-called “reli­gious free­dom” laws, Arkansas and Indi­ana must enact statewide anti-discrimination pro­tec­tions for the LGBT com­mu­nity, insert addi­tional safe­guards against use of the laws to harm oth­ers, and limit their appli­ca­tion to indi­vid­u­als, reli­gious insti­tu­tions, and religiously-affiliated non-profits against gov­ern­ment action that sub­stan­tially bur­dens religion.

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November 20, 2014 0

Good D.C. Circuit Ruling on ACA Contraception Mandate Opt-Out Rule

The influ­en­tial U.S. Court of Appeals for the Dis­trict of Colum­bia recently rejected legal claims by reli­gious non­prof­its assert­ing that even the min­i­mal require­ments for opt­ing out of the Afford­able Care Act’s (ACA) con­tra­cep­tion man­date vio­late their reli­gious free­dom rights.

DC Circuit Court of Appeals Building

DC Cir­cuit Court of Appeals Building

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.  And religiously-affiliated orga­ni­za­tions may opt out of the con­tra­cep­tive man­date by merely sub­mit­ting a one-page form or oth­er­wise pro­vid­ing notice to its health plan issuer or 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.

Despite this nom­i­nal require­ment, plain­tiffs in the case called Priests for Life v. U.S. Depart­ment of Health and Human Ser­vices claim that it “sub­stan­tially bur­dens” their reli­gious exer­cise in vio­la­tion of the fed­eral Reli­gious Free­dom Restora­tion Act (“RFRA”).  They assert that the opt-out notice require­ment “trig­gers” sub­sti­tute cov­er­age and thereby – makes them “con­duits” for pro­vid­ing con­tra­cep­tion cov­er­age in vio­la­tion of their reli­gious beliefs.

The Court soundly rejected this claim.  It found that the fil­ing of the form excuses plain­tiffs “… from play­ing any role in the pro­vi­sion of con­tra­cep­tion ser­vices, and they remain free to con­demn con­tra­cep­tion in the clear­est terms.”  And it 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, the Court 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.

The Court also deter­mined that the con­tra­cep­tion require­ment advances the com­pelling inter­ests of “pub­lic health and gen­der equal­ity” and the opt-out rule is the least restric­tive way to achieve these  inter­ests because it “requires as lit­tle as it can from the objec­tors while still serv­ing the government’s com­pelling state interests.”

The Court’s deci­sion appro­pri­ately ref­er­ences the real­ity of our nation’s reli­giously diverse work­force, stat­ing “[r]eligious non­prof­its like Plain­tiff orga­ni­za­tions employ mil­lions of Amer­i­cans — includ­ing indi­vid­u­als who do not share their beliefs.”   Given this diver­sity and our plu­ral­is­tic democ­racy, the Court’s deci­sion strikes the right bal­ance between reli­gious lib­erty and civil rights.

Unlike the U.S. Supreme Court’s dis­turb­ing Hobby Lobby deci­sion,  the Court in this case prop­erly rec­og­nized the true leg­isla­tive intent of RFRA: to shield to reli­gious prac­tice — not to serve as a sword to impose reli­gious beliefs on others.

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October 23, 2014 0

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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