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March 4, 2016 0

A Win For Religious Minorities In the Military

Cap­tain Sim­rat­pal is an hon­ors West Point grad­u­ate, Army Ranger, com­bat vet­eran, Bronze Star recip­i­ent and obser­vant Sikh, who wants to abide by the arti­cles his faith – wear­ing a tur­ban, unshorn hair and a beard – while serv­ing his coun­try.  Instead of grant­ing his recent request for a per­ma­nent reli­gious accom­mo­da­tion, the Army sin­gled him out for spe­cial­ized gas mask and hel­met testing.

Yes­ter­day, a fed­eral dis­trict court in a well-reasoned deci­sion not only rejected these tests, but rec­og­nized the impor­tance of fos­ter­ing reli­gious diver­sity in our military.

sikh warrior When the Cap­tain entered West Point a decade ago, Army rules did not per­mit him to fol­low the arti­cles of his faith.  So he made the dif­fi­cult choice of choos­ing ser­vice to his coun­try over his faith.

In recent years, how­ever, the Army has revised it reli­gious accom­mo­da­tion rules and Sikh sol­ders have been per­mit­ted to abide by their religiously-mandated groom­ing stan­dards. After Cap­tain Sim­rat­pal met some of these sol­ders at a Pentagon-sponsored Sikh cel­e­bra­tion last year, he decided that his mil­i­tary ser­vice should not pre­vent him from fol­low­ing his faith.

Last Decem­ber, he was granted a tem­po­rary accom­mo­da­tion to wear a tur­ban, unshorn hair and a beard pend­ing a deci­sion on his request for a per­ma­nent accom­mo­da­tion.  The Cap­tain was under the belief that the Army would grant the per­ma­nent accom­mo­da­tion, but instead he received orders on Feb­ru­ary 24th to report for rig­or­ous, spe­cial­ized test­ing for the fit­ting of his gas mask and hel­met.  Sol­diers seek­ing to wear a beard for med­ical rea­sons, “Hard to fit” sol­diers with hel­met and mask fit­ting issues, and even other Sikh sol­diers are not required to undergo such testing.

This week, the Cap­tain filed a fed­eral law­suit with the U.S. Dis­trict Court for the Dis­trict of Colum­bia claim­ing that the spe­cial­ized test vio­lated his rights under the Reli­gious Free­dom Restora­tion Act (RFRA) and ask­ing to the Court to tem­porar­ily stop them while he awaits a final answer on his request for a per­ma­nent reli­gious accommodation.

The court ruled in his favor stat­ing: Sin­gling out the plain­tiff for spe­cial­ized test­ing due to only his Sikh arti­cles of faith is, in this con­text, unfair and dis­crim­i­na­tory.  It is this sin­gling out for spe­cial scrutiny – indeed, with the ini­tial pre­cau­tion of requir­ing an escort and observers for the plain­tiff as he was sub­jected to the tests – that has a clear ten­dency to pres­sure the plain­tiff, or other sol­diers who may wish to seek a reli­gious accom­mo­da­tion, to con­form behav­ior and forego reli­gious precepts. Rattan sings

ADL over the last decade has expressed con­cerns and advo­cated on issues of reli­gious accom­mo­da­tion and coer­cion in the mil­i­tary.  We wel­come the court’s rul­ing and state­ment that “the pub­lic has a sig­nif­i­cant inter­est in hav­ing a diverse mil­i­tary, reflec­tive of the com­po­si­tion of our coun­try and accept­ing of reli­gious minori­ties.”  The Army should with­draw its order for spe­cial­ized test­ing of Cap­tain Sim­rat­pal and expe­di­tiously grant his request for a per­ma­nent reli­gious accommodation.

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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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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.

Indiana-StateSeal.svg

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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