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May 23, 2016 8

Defense Authorization Act Moves Forward With Discriminatory Provision

Congress standing

Last week, the U.S. House of Rep­re­sen­ta­tives passed the National Defense Autho­riza­tion Act for 2017 (“NDAA”), inclu­sive of a broad, dis­crim­i­na­tory pro­vi­sion spon­sored by Rep. Steve Rus­sell (R-OK). This pro­vi­sion, offered in the name of “reli­gious free­dom,” would allow reli­giously affil­i­ated fed­eral con­trac­tors and grantees to dis­crim­i­nate against women, any reli­gious group, and LGBT peo­ple with tax­payer dollars.

Dur­ing House’s debate on the NDAA, Rep. Sean Mal­oney (D-NY) offered a nar­row­ing amend­ment which would have pro­tected the Obama Administration’s ban on LGBT dis­crim­i­na­tion in fed­eral con­tract­ing. That amend­ment failed on chaotic 212–213 vote dur­ing which Repub­li­can lead­ers took the extra­or­di­nary step of allow­ing vot­ing to con­tinue after time had expired and pres­sured a hand­ful of their Mem­bers to change their votes.

The Anti-Defamation League was one of 84 civil rights and reli­gious orga­ni­za­tions that sub­mit­ted a coali­tion let­ter to Con­gress in oppo­si­tion to the Rus­sell Amendment.

Reli­giously affil­i­ated groups his­tor­i­cally have played an impor­tant role in address­ing many of our nation’s most press­ing social needs, as a com­ple­ment to government-funded pro­grams.   How­ever, faith-based groups should not use tax­payer dol­lars to dis­crim­i­nate on the basis of reli­gion.  And no one should be dis­qual­i­fied from a job under a fed­eral con­tract or grant because of his or her sex­ual ori­en­ta­tion, gen­der, gen­der iden­tity, or religion.

The Sen­ate Armed Ser­vices Com­mit­tee has approved its ver­sion of the NDAA with­out the Rus­sell Amend­ment.  Mov­ing for­ward, ADL and our coali­tion part­ners will con­tinue to oppose the Rus­sell Amend­ment and advo­cate for its exclu­sion from the final ver­sion of the NDAA.

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July 11, 2014 Off

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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