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July 3, 2015 2

Yes, Justice Thomas, the Government Can Deprive People of Dignity

The word “dig­nity” appears 30 times in last week’s Supreme Court mar­riage equal­ity case, Oberge­fell v. Hodges. Describ­ing the same-sex cou­ples who aspired to marry, Jus­tice Anthony Kennedy, writ­ing for the 5–4 major­ity, stated:

Their hope is not to be con­demned to live in lone­li­ness, excluded from one of civilization’s old­est insti­tu­tions. They ask for equal dig­nity in the eyes of the law. The Con­sti­tu­tion grants them that right. supreme-court-civil-rights




In a bit­ter dis­sent, Jus­tice Clarence Thomas demurred, stat­ing that “the Con­sti­tu­tion con­tains no ‘dig­nity’ Clause.” He argued that the gov­ern­ment is “inca­pable of bestow­ing dig­nity,” stat­ing flatly that” human dig­nity can­not be taken away by the government.”

Aston­ish­ingly, Jus­tice Thomas then attempted to prove his dubi­ous propo­si­tion by cit­ing two extreme and rep­re­hen­si­ble gov­ern­ment actions that were actu­ally designed to deprive vic­tims of “equal dig­nity under the law” – slav­ery and the incar­cer­a­tion of Amer­i­cans of Japan­ese descent dur­ing World War II:

Slaves did not lose their dig­nity … because the gov­ern­ment allowed them to be enslaved. Those held in intern­ment camps did not lose their dig­nity because the gov­ern­ment con­fined them.

But the gov­ern­ment did not “allow” blacks to be enslaved – the laws of the time facil­i­tated and empow­ered slave own­ers and enforced slavery.

And the Japan­ese Amer­i­can Cit­i­zens League was rightly “appalled” by Jus­tice Thomas’ blind­ness to the impact of the government’s shame­ful and unwar­ranted forcible relo­ca­tion and incar­cer­a­tion of 120,000 Amer­i­cans of Japan­ese descent, the vast major­ity of whom were citizens.

In 1942, just 10 weeks after the sur­prise attack on Pearl Har­bor, Pres­i­dent Franklin D. Roo­sevelt issued his Exe­cu­tion Order 9066, pro­vid­ing the legal author­ity for this depri­va­tion of lib­erty and dig­nity. Roosevelt’s exec­u­tive action was issued against the back­drop of wide­spread, base­less fears that Amer­i­cans of Japan­ese ances­try might pose a threat to the U.S – anx­i­ety that was cer­tainly fed by a long his­tory of prej­u­dice and xeno­pho­bia direct against Japan­ese Americans.

Those incar­cer­ated in the camps were uprooted from their com­mu­ni­ties, sep­a­rated from their fam­i­lies, their homes, and their pos­ses­sions, and lost their per­sonal lib­er­ties and free­doms until the end of the war.

Trag­i­cally, the president’s exec­u­tive order was bol­stered by addi­tional con­gres­sional enact­ments. And when the con­sti­tu­tion­al­ity of these actions was chal­lenged in two main cases before the U.S. Supreme Court – Hirabayashi v. U.S. andKore­matsu v. United States – the Court held that these clearly dis­crim­i­na­tory actions by the gov­ern­ment were, in fact, jus­ti­fied and constitutional.

Now, 73 years later, the Anti-Defamation League uses the cruel and unwar­ranted wartime treat­ment of Amer­i­cans of Japan­ese descent as a teach­able moment for our nation on the dan­gers of stereo­typ­ing, prej­u­dice, and racial pro­fil­ing. While we can honor and admire indi­vid­u­als that can retain their per­sonal dig­nity under the most adverse con­di­tions, there should be no doubt, Jus­tice Thomas, that the gov­ern­ment can deprive peo­ple of their “equal dignity.”

For­tu­nately, a Supreme Court major­ity has now held that the Con­sti­tu­tion man­dates that same-sex cou­ples are enti­tled to equal treat­ment – and mar­riage equality.

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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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