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Posts Tagged ‘separation of church and state’
October 23, 2014 0

HHS Issues Overly-Broad Draft Rule Following Hobby Lobby

The U.S. Supreme Court’s deeply-troubling deci­sion in Bur­well v. Hobby Lobby allows cer­tain for-profit, cor­po­ra­tions to opt out of the Afford­able Care Act’s (ACA) con­tra­cep­tion man­date based on reli­gious objec­tions.  In in an effort to com­ply with the deci­sion, the U.S. Depart­ment of Health and Human Ser­vices (“HHS”) issued a new pro­posed rule defin­ing orga­ni­za­tions and cor­po­ra­tions eli­gi­ble for reli­gious accom­mo­da­tion sim­i­lar to those already avail­able to reli­gious non­prof­its.  ADL firmly believes that the pro­posed rule is too broad and recently sub­mit­ted com­ments urg­ing a more nar­row def­i­n­i­tion of eli­gi­ble organizations.  hs-issues-overly-broad-draft-hobby-lobby

The ACA requires employer-provided health insur­ance to include cov­er­age for the full range of Food and Drug Admin­is­tra­tion (FDA)-approved con­tra­cep­tives and health ser­vices. Rec­og­niz­ing that con­tra­cep­tion impli­cates reli­gious beliefs, HHS exempted houses of wor­ship and other pervasively-religious employ­ers from the con­tra­cep­tion man­date.  It also accom­mo­dated religiously-affiliated non­prof­its (includ­ing schools and hos­pi­tals) by cre­at­ing a mech­a­nism through which employ­ees’ con­tra­cep­tives are made avail­able by third-party insur­ers with­out cost-sharing by the employer or the indi­vid­u­als access­ing these services.

Notwith­stand­ing these extra­or­di­nary accom­mo­da­tion efforts, own­ers of sec­u­lar, for-profit cor­po­ra­tions have filled dozens of law­suits under the First Amend­ment and Reli­gious Free­dom Restora­tion Act (RFRA) assert­ing reli­gious objec­tions to the con­tra­cep­tion man­date.  These cases cul­mi­nated in the Supreme Court’s recent Hobby Lobby deci­sion.  ADL joined an ami­cus (friend-of-the-court) brief to the Court in the case argu­ing that the con­nec­tion between an employee’s pri­vate deci­sion to uti­lize con­tra­cep­tives made avail­able under the ACA is so far removed from an employer (likely entirely unknown), it could not pos­si­bly meet the RFRA stan­dard of impos­ing a “sub­stan­tial bur­den” on the reli­gious prac­tices of the cor­po­ra­tions’ owners.

How­ever, the Supreme Court’s dis­turb­ing deci­sion ruled that RFRA empow­ers cer­tain pri­vate, closely-held cor­po­ra­tions to impose their reli­gious beliefs on employ­ees by refus­ing to include con­tra­cep­tive cov­er­age in their employee health insur­ance plans.  Fol­low­ing this deci­sion, HHS issued its pro­posed new rule for closely held, for-profit cor­po­ra­tions – and asked for com­ments on how to define eli­gi­bil­ity for this accommodation.

ADL firmly believes that every woman should have access to the full range of FDA-approved con­tra­cep­tives, with­out addi­tional costs.  Our com­ments on the pro­posed rule argue that a nar­row def­i­n­i­tion of eli­gi­ble orga­ni­za­tions is nec­es­sary in order to limit the num­ber of sec­u­lar, for-profit own­ers who could impose their reli­gious beliefs on their employ­ees – and to limit over­all lit­i­ga­tion.  We also urged that closely-held cor­po­ra­tions seek­ing to opt out of the con­tra­cep­tion man­date be required to demon­strate that their reli­gious objec­tions are guided by sincerely-held reli­gious beliefs doc­u­mented in cor­po­rate char­ters, busi­ness prac­tices, poli­cies, and operations.

A final rule is expected in the next few months.

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October 3, 2014 0

Sectarian Legislative Prayer – Walking In The Religious Minority’s Shoes

The U.S. Supreme Court’s recent leg­isla­tive prayer deci­sion (Greece v. Gal­loway) gen­er­ally sanc­tions sec­tar­ian prayers before meet­ings of local leg­isla­tive bod­ies except for the most egre­gious cir­cum­stances.  In oppos­ing the Court’s deci­sion, Jus­tice Elana Kagan astutely con­cluded that “[w]hen the cit­i­zens of this coun­try approach their gov­ern­ment, they do so only as Amer­i­cans, not as mem­bers of one faith or another.  And that means that even in a partly leg­isla­tive body, they should not con­front government-sponsored wor­ship that divides them along reli­gious lines.”  At a recent county com­mis­sion meet­ing, a local com­mis­sioner may have expe­ri­enced the les­son of Jus­tice Kagan’s admonition.seal-of-escambia-county

The Escam­bia County, FL Com­mis­sion allows sec­tar­ian invo­ca­tions at its pub­lic meet­ings by a com­mu­nity mem­ber of any faith or reli­gion.  At the Sep­tem­ber 25th Com­mis­sion meet­ing, David Suhor, who is Pagan, recited a pagan prayer song “call­ing of the direc­tions north, east, south and west.”  Regard­ing his prayer, Mr. Suhor later stated “[i]n a way I would like for other peo­ple to expe­ri­ence what it’s like when I go to a meet­ing and am asked to pray against my conscience.”

Mr. Suhor’s prayer appar­ently offended at least one per­son in the room. Accord­ing to a news report, County Com­mis­sioner Wil­son Robert­son, “left the room because of his Chris­t­ian beliefs,” and he stated “[p]eople may not real­ize it, but when we invite some­one a min­is­ter to pray they are pray­ing for the county com­mis­sion­ers for us to make wise deci­sions and I’m just not going to have a pagan or satanic min­is­ter pray for me.”

ADL opposes sec­tar­ian leg­isla­tive prayer prac­tices because of the reli­gious exclu­sion and divi­sion result­ing from them – par­tic­u­larly for reli­gious minori­ties.  If the com­mis­sioner does not want a com­mu­nity mem­ber to pray for him in a faith that offends his con­science, per­haps he and other com­mis­sion mem­bers should adopt a moment of silence pol­icy or at least a non-sectarian invo­ca­tion policy.

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August 28, 2014 0

Town of Greece’s New Invocation Policy Excludes Religious Minorities

The U.S. Supreme Court’s recent per­mis­sive leg­isla­tive prayer deci­sion (Greece v. Gal­loway) allows for sec­tar­ian invo­ca­tions at meet­ings of local leg­isla­tive bod­ies. Open­ing prayer prac­tices, how­ever, are not with­out limit. The deci­sion requires that a local leg­isla­tive body must imple­ment a non-discrimination pol­icy with respect to prayer givers.  The Town of Greece, New York —  a party to the Supreme Court case – recently adopted a new Town Board invo­ca­tion pol­icy.  This pol­icy cer­tainly vio­lates the spirit of the Greece decision’s non-discrimination man­date, but it is an open ques­tion whether it  actu­ally vio­lates it.supreme-court-civil-rights

The new pol­icy allows pri­vate cit­i­zens to sol­em­nize the pro­ceed­ings of the Town Board by offer­ing a “prayer, reflec­tive moment of silence, or a short sol­em­niz­ing mes­sage.”  How­ever, the per­son pro­vid­ing the sol­em­niz­ing mes­sage must be an appointed rep­re­sen­ta­tive of  “an assem­bly that reg­u­larly meet[s] for the pri­mary pur­pose of shar­ing a reli­gious per­spec­tive.”  The assem­bly must either be located within Greece, or it can be located out­side of town if a res­i­dent reg­u­larly attends the assem­bly and requests its inclu­sion on an offi­cial “Assem­blies List.”

The term “reli­gious per­spec­tive” cer­tainly encom­passes minor­ity faiths and non-believers.  Indeed, the U.S. Supreme Court has repeat­edly ruled that athe­ism and eth­i­cal human­ism are sin­cerely held reli­gious beliefs.  How­ever, while there may be Athe­ists, Bud­dhists, Eth­i­cal Human­ists, Jews, Mus­lims, Sikhs or other reli­gious minori­ties resid­ing in Greece, they may not have a con­gre­ga­tion within or prox­i­mate to town.  So the new pol­icy effec­tively deprives reli­gious minori­ties from par­tic­i­pat­ing in the invo­ca­tion oppor­tu­nity.   This is one rea­son why ADL views leg­isla­tive prayer prac­tices as divi­sive and poor pub­lic pol­icy.  If the Town of Greece truly wants to be inclu­sive and live up to the spirit of the Supreme Court’s non-discrimination require­ment, it should give all res­i­dents a true oppor­tu­nity to sol­em­nize Town Board proceedings.

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