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October 13, 2014 0

Supreme Court Inmate Beard Case Illustrates True Purpose Of Federal Free Exercise Laws

Last week, the U.S. Supreme Court heard argu­ments in a case (Holt v. Hobbs) brought by an obser­vant Mus­lim inmate chal­leng­ing an Arkansas Depart­ment of Cor­rec­tions (“DOC”) pol­icy bar­ring beards worn for reli­gious rea­sons.  ADL had joined a friend-of-the-court-brief filed by a coali­tion of reli­gious orga­ni­za­tions in sup­port of the inmate.   Given the facts of the case, the ques­tions and answers at oral argu­ment, and the Court’s overly broad read­ing of a fed­eral law sim­i­lar to the one at issue in this case, there likely are five jus­tices who will side with the inmate.holt-v-hobbs

Forty state prison sys­tems allow inmates to wear beards with­out lim­i­ta­tion, and another three allow beards with some lim­i­ta­tions.  But the DOC pro­hibits inmates from wear­ing half-inch beards for reli­gious reasons.

The inmate – Gre­gory Holt – chal­lenged the beard pol­icy under the Reli­gious Land Use and Insti­tu­tion­al­ized Per­sons Act (“RLUIPA”).   It is sis­ter leg­is­la­tion to the Reli­gious Free­dom Restora­tion Act (“RFRA”), the law at issue in the trou­bling Hobby Lobby deci­sion where the Court found that the Afford­able Care Act’s con­tra­cep­tion man­date “sub­stan­tially” bur­dened the reli­gious exer­cise of a for-profit cor­po­ra­tion.  Both statutes apply strict scrutiny – the most robust con­sti­tu­tional stan­dard – when neu­tral laws or gov­ern­ment rules sig­nif­i­cantly bur­den reli­gious exercise.

At the argu­ment, DOC’s attor­ney jus­ti­fied the beard pol­icy based on pris­oner misiden­ti­fi­ca­tion and hid­den con­tra­band con­cerns.  But he could not cite to an exam­ple of either.  The attor­ney also had dif­fi­culty explain­ing why the Court should give def­er­ence to the pol­icy when inmates are per­mit­ted to have quarter-inch beards for med­ical rea­sons, wear their hair to the mid­dle of the neck, and grow Afros with­out lim­i­ta­tion, all of which arguably could pose the same concerns.

This case reflects the true pur­pose of both RLUIPA and RFRA: to shield reli­gion from gov­ern­ment bur­dens — not detri­men­tally impos­ing reli­gious beliefs on oth­ers as was the case in Hobby Lobby.  Based on DOC’s fail­ure to show a mate­r­ial effect on prison secu­rity, the Court should find in favor of Mr. Holt.  Allow­ing him to wear a short beard upholds his reli­gious lib­erty with­out impos­ing his faith on or caus­ing harm to others.

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July 11, 2014 0

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 1

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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