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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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July 30, 2015 0

Mezuzah Is Fair Housing Decision’s Overlooked Beneficiary

The U.S. Supreme Court’s June 25th favor­able fair hous­ing deci­sion was a big win for the civil rights of all Amer­i­cans, includ­ing Jew­ish con­do­minium own­ers and renters who are pro­hib­ited from plac­ing Mezuzahs on their outer door posts.

A mezuzah is a small, unob­tru­sive object – typ­i­cally less than six inches long and an inch wide – which for mil­len­nia has been placed on the outer door­posts of Jew­ish homes in ful­fill­ment of reli­gious oblig­a­tions.  It is not a dec­o­ra­tive choice for Jews, or a choice of any kind.  Rather, an obser­vant Jew­ish per­son can­not buy, rent or reside in a res­i­dence where place­ment of a mezuzah on the outer door­post is prohibited.

Mezuzah-RS Many con­do­mini­ums, devel­op­ments and rental com­mu­ni­ties are sub­ject to gen­er­ally applic­a­ble aes­thetic or other restric­tions which pro­hibit the dis­play of all reli­gious or sec­u­lar sym­bols on outer door­posts and doors, includ­ing the mezuzah.  In the vast major­ity of these sit­u­a­tions, home­owner asso­ci­a­tions or land­lords accom­mo­date Jew­ish res­i­dents by allow­ing them to post their mezuzahs with­out issue.

How­ever, in the minor­ity of cases where asso­ci­a­tions or land­lords refuse to allow the mezuzah, the Court’s deci­sion is a valu­able legal tool.  In Texas Dept. of Hous­ing v. The Inclu­sive Com­mu­ni­ties Project, Inc., the Court rec­og­nized “dis­parate impact” the­ory under the fed­eral Fair Hous­ing Act.  As a result, gen­er­ally applic­a­ble hous­ing rules or prac­tices that have the effect of unin­ten­tion­ally dis­crim­i­nat­ing on the basis of race, color, reli­gion, sex, famil­ial sta­tus or national ori­gin, includ­ing restric­tions bar­ring dis­play of the mezuzah, vio­late the Act.

In light of the Court’s rul­ing, ADL has issued a new pub­li­ca­tion enti­tled, “Reli­gious Accom­mo­da­tion for the Mezuzah: Your Rights Under Fair Hous­ing Laws,” which in addi­tion to dis­cussing accom­mo­da­tions under fed­eral law cov­ers the four state laws (Con­necti­cut, Florida, Illi­nois and Texas) that specif­i­cally pro­hibit rules bar­ring dis­plays of the mezuzah and other reli­gious sym­bols in outer door areas.

Pro­vid­ing reli­gious accom­mo­da­tions for the mezuzah is a prin­ci­pled and wor­thy prac­tice.   Now that the Court has ruled in favor of dis­parate impact under the Fair Hous­ing Act, home­owner asso­ci­a­tions and land­lords should be on notice that pro­vid­ing such accom­mo­da­tions is not only the right thing to do, but legally required in most instances.

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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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