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March 4, 2016

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

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

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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