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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.


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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March 31, 2015 4

Governor Pence’s Empty Defense of Indiana “Religious Freedom” Law

Indi­ana Gov­er­nor Mike Pence is receiv­ing national back­lash for sign­ing a so-called “reli­gious free­dom” law that is caus­ing major cor­po­ra­tions to rethink their activ­i­ties in his state.  The Gov­er­nor claims there is a “tremen­dous amount of mis­in­for­ma­tion and mis­un­der­stand­ing” about the law, which many are call­ing a license to dis­crim­i­nate. Yet he has repeat­edly refused to answer the sim­ple ques­tion: does the law legal­ize dis­crim­i­na­tion?  He likely won’t, because the hon­est answer is “yes.”

Michael Pence, Governor of Indiana

Michael Pence, Gov­er­nor of Indiana

Civil rights orga­ni­za­tions do not stand alone in their strong oppo­si­tion to this law.  In the 5 days since Gov­er­nor Pence signed Indi­ana Sen­ate Bill 101 into law, busi­nesses, sports leagues, and local and state gov­ern­ments have voiced their deep con­cern about the law and threat­ened action in response.

Two major busi­nesses have already restricted their Indi­ana oper­a­tions.   Salesforce.com announced that it will “dra­mat­i­cally reduce [its] invest­ment” in Indi­ana, will can­cel pro­grams that would require its cus­tomers to travel to Indi­ana, and may even help its employ­ees move out of state.  Angie’s List halted plans for a $40 mil­lion expan­sion in Indianapolis.

The gov­er­nor of Con­necti­cut, as well as may­ors of San Fran­cisco and Seat­tle recently announced plans to bar publicly-funded travel to Indi­ana.  Even Indi­anapo­lis Mayor Bal­lard sharply crit­i­cized the law. And other major busi­nesses and groups are also express­ing con­cern.  Apple Chief Exec­u­tive Tim Cook expressed deep dis­ap­point­ment with the new law, and the Indianapolis-based NCAA said the law could lead it to move events out­side of the state.

The NBA, WNBA, and NFL also voiced con­cern.   Just yes­ter­day, CEOs of nine major cor­po­ra­tions, includ­ing Eli Lilly and Co., Roche Diag­nos­tics, and Indi­ana Uni­ver­sity Health, hand deliv­ered a let­ter to Gov­er­nor Pence, the Sen­ate Pres­i­dent and the Speaker of House stat­ing that they are they are “deeply con­cerned about the impact [the law] is hav­ing on our employ­ees and on the rep­u­ta­tion of our state …” and urg­ing them “… to take imme­di­ate action to ensure that the Reli­gious Free­dom Restora­tion Act will not sanc­tion or encour­age dis­crim­i­na­tion against any res­i­dents or vis­i­tors to our state by anyone.”

In 2014, the Ari­zona leg­is­la­ture passed a sim­i­lar “reli­gious free­dom” law.   But under pres­sure from the civil rights com­mu­nity and busi­nesses such as Amer­i­can Air­lines, Google and the NFL, Gov­er­nor Jan Brewer wisely vetoed the ill-advised legislation.

Gov­er­nor Pence, how­ever, con­tin­ues to defend the law and argues it is just like the fed­eral Reli­gious Free­dom Act (“RFRA”) and other sim­i­lar state laws that have been on the books for years.  It’s not.

Although the new Indi­ana law never men­tions sex­ual ori­en­ta­tion or dis­crim­i­na­tion, it effec­tively allows all Indi­ana busi­nesses, except per­haps large, pub­lic cor­po­ra­tions, the right to dis­crim­i­nate against the LGBT com­mu­nity and oth­ers under the cloak of “reli­gious free­dom.”  The law does so by pro­vid­ing them with a pow­er­ful and vir­tu­ally insur­mount­able religious-based defense to any state or local civil or crim­i­nal law.

In con­trast, the fed­eral RFRA only applies when an actual gov­ern­ment entity “sub­stan­tially bur­dens” reli­gious exer­cise and is a party to a sub­se­quent legal pro­ceed­ing.  Fur­ther­more, prior to the U.S. Supreme Court’s deeply trou­bling Hobby Lobby deci­sion, RFRA was under­stood as only pro­vid­ing pro­tec­tions to indi­vid­u­als and reli­gious insti­tu­tions – and not for-profit, closed corporations.

So what does this mean in prac­ti­cal terms?  For exam­ple, let’s say that a gay cou­ple goes to tuxedo rental store to try on and reserve gar­ments for their wed­ding.  Based on the new “reli­gious free­dom” law, the owner refuses ser­vice to the cou­ple, claim­ing that serv­ing them would “sub­stan­tially” bur­den his or her reli­gious beliefs.  At this point, the cou­ple might seek a legal rem­edy.   Of course, law­suits are pro­hib­i­tively expen­sive and take years to resolve, so most denials of ser­vice will go unchallenged.

But even if the cou­ple chooses to bring a law­suit under Indi­ana law, they would have an uphill fight to meet the rel­e­vant legal stan­dard  “strict scrutiny.”   Lit­i­gants who must prove this stan­dard usu­ally lose.  Because fed­eral and Indi­ana state law do not pro­vide anti-discrimination pro­tec­tions based on sex­ual ori­en­ta­tion and gen­der iden­tity,  the LGBT com­mu­nity is the most vul­ner­a­ble to the “reli­gious free­dom” law.   But the law also could be raised as a defense to legal actions brought by cou­ples who are denied ser­vice because of their reli­gion, eth­nic­ity or national origin.

Dur­ing the civil rights move­ment, efforts by busi­nesses to cloak dis­crim­i­na­tion against African Amer­i­cans in the guise of “reli­gious free­dom” were ulti­mately defeated because our nation’s true reli­gious free­dom pro­tec­tions were never intended to be used as a sword to harm oth­ers.  But the new Indi­ana law does just that by allow­ing for-profit busi­nesses to use reli­gion as a vehi­cle to dis­crim­i­nate in the mar­ket­place.   Undoubt­edly, as long as it remains on the books, this law will fur­ther dam­age Indiana’s rep­u­ta­tion and economy.

With a month left in its 2015 leg­isla­tive ses­sion, the Gov­er­nor would be wise to push for a repeal of this odi­ous law.

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