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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 20, 2014 1

NC School District Continues Legally Questionable Bible Course

News reports about a ques­tion­able ele­men­tary school Bible course recently brought national atten­tion on the Rowan-Salisbury, NC pub­lic school sys­tem. Accord­ing to these reports, the classes are funded by reli­gious non­profit groups and include explicit reli­gious indoc­tri­na­tion. If true, these prac­tices raise seri­ous con­sti­tu­tional issues. nc-school-religion

Shortly after the Bible course made the news, the Rowan-Salisbury School Board held a meet­ing to con­sider whether the classes should con­tinue. Although the Board voted to review the course cur­ricu­lum, it appears that the classes will con­tinue pend­ing the review. In sup­port of con­tin­u­ing the Bible classes, Chair­man of the Rowan County Board of Com­mis­sion­ers Jim Sides report­edly stated: “I am sick and tired of being told by the minor­ity what’s best for the majority.”

Our nation’s pub­lic schools cer­tainly are not devoid of reli­gion. The U.S. Supreme Court has ruled that pub­lic schools can teach about reli­gion in an objec­tive and neu­tral man­ner, but they can­not teach or indoc­tri­nate reli­gion. For school offi­cials, mak­ing that dis­tinc­tion — par­tic­u­larly for a Bible course — is no easy task. Indeed, a let­ter ADL sent to the Rowan-Salisbury School Board in advance of its recent meet­ing noted that all reported legal deci­sions on Bible courses in pub­lic schools found con­sti­tu­tional violations.

ADL firmly believes that com­par­a­tive reli­gion classes are more appro­pri­ate for pub­lic schools. By its vote, the Rowan-Salisbury School Board appar­ently does not agree. But the Board needs to take a num­ber of impor­tant steps to ensure that its Bible course is con­sti­tu­tional and reli­giously inclu­sive. First and fore­most, it has to abide by the Supreme Court’s direc­tive, which requires a num­ber of prac­ti­cal steps.

For starters, the classes should be lim­ited to sec­ondary schools. When it comes to reli­gion in the pub­lic schools, the Courts are most pro­tec­tive of ele­men­tary school stu­dents because they are most impres­sion­able and vul­ner­a­ble to reli­gious coer­cion. Try­ing to craft a con­sti­tu­tion­ally per­mis­si­ble ele­men­tary school cur­ricu­lum is sim­ply unwork­able, and will undoubt­edly lead to more con­tro­versy and litigation.

The cur­ricu­lum also should be reviewed by a pro­fes­sor of reli­gious stud­ies or another expert, and Bible course teach­ers should receive train­ing on Estab­lish­ment Clause and reli­gious diver­sity issues.

Chair­man Sides and the school board should keep in mind that our nation’s pub­lic schools serve all of our chil­dren, whether they are in the reli­gious major­ity or minor­ity. If a school makes the deci­sion to teach a Bible course, the cur­ricu­lum should be bal­anced and plu­ral­is­tic in nature. It can­not advo­cate one par­tic­u­lar reli­gion, or one bib­li­cal inter­pre­ta­tion or trans­la­tion over another.

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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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