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July 3, 2015

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

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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