Professor Katherine Franke, Director of the Law School’s Center for Gender and Sexuality Law, Says Hobby Lobby Decision Strikes a Devastating Blow for Sexual Liberty and Equality, Treating Women’s Reproductive Rights as Second Class Constitutional Rights

Media Contact: Public Affairs, 212-854-2650 or publicaffairs@law.columbia.edu

New York, June 30, 2014—Legal experts from Columbia Law School who specialize in sexuality and gender law are available to comment on today’s U.S. Supreme Court decisions in favor of for-profit business owners who have religious objections to contraception, which held that the Religious Freedom Restoration Act exempts such owners from the Affordable Care Act’s “contraception mandate.”

Columbia Law School Professor Katherine Franke and Research Fellow Kara Loewentheil said today’s Supreme Court decisions significantly reshape the role that religion can play in secular contexts, such as the workplace and the market. By finding that these businesses do not have to provide insurance coverage for contraception in their employee health plans, the majority sent a clear message that female employees are not guaranteed the same rights as their male counterparts, they said. But, they cautioned, the opinion should not be interpreted overly broadly. It applies only to this particular type of closely-held corporation and only to the contraceptive coverage requirement, which already has an accommodation structure for non-profit organizations in place.

“By treating a right to reproductive health care as negotiable,” Franke said, “the Court attempts to distinguish it from other forms of health care like transfusions and vaccinations, and other forms of discrimination, like race or sexual orientation. But this effort to limit the broad reach of today’s decision only reinforces the separation and erosion of women’s right to sexual liberty and equality.”

The Law School’s Center for Gender and Sexuality Law recently launched the Public Rights/Private Conscience Project, one of the first independent law school projects aimed at re-conceptualizing religious exemptions and the law, particularly as the exemptions impact reproductive, sexual liberty, and equality rights.

Franke, who directs the Center for Gender and Sexuality Law, said the radical nature of the Supreme Court’s opinions in the Hobby Lobby and Conestoga Wood cases “marks a significant shift in the relation of religious liberty rights to the liberty and equality rights of women under the Constitution.”

“The Supreme Court has allowed the owners of Hobby Lobby and Conestoga Wood to pick and choose which laws apply to them, in effect transforming their religion into a personal law that allows them to avoid the general mandates of the Affordable Care Act,” Franke said. “This transformation results in the evisceration of the liberty and equality rights of women, who bear the cost of their employers’ religious beliefs.”

The cases decided today are part of a wave of litigation filed in federal courts across the country by for-profit businesses, non-profit religiously affiliated organizations, and houses of worship against the contraceptive coverage requirement of the Affordable Care Act, which requires that insured women receive preventative care at no cost to them. The cases have given rise to a national conversation about the role of religion in public life.

Loewentheil, Project Director of the Public Rights/Private Conscience Project offered the following comment:

“This is just the tip of the iceberg. “The problem with these decisions is that they allow religious believers to create their own laws. We’re not talking about a house of worship – we’re talking about the public marketplace and public laws, and when religious belief controls decisions in those spaces it’s no longer taking place in isolation. Now we are likely to see many more employers trying to impose their religious beliefs on their employees – whether they object to contraception, abortion, artificial reproductive technologies, marriage equality, or transgender rights.”

Franke and Loewentheil are available for interviews and can be reached directly via the Law School’s Public Affairs Office at 212-854-2650, or email publicaffairs@law.columbia.edu.

The Law School also has a studio on campus equipped with an ISDN line and IFB capability for radio and television interviews. Please contact the Public Affairs Office for bookings.

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