LGBT Prisoners’ Rights: Farmer v. Brennan 20 Years Later


Posted on June 5th, 2014 by Cindy Gao

By: Urvashi Vaid, Senior Fellow, Center for Gender & Sexuality Law, Columbia Law School; Harper Jean Tobin, Director of Policy, National Center for Transgender Equality (NCTE); Amy Fettig, Senior Staff Attorney, National Prison Project of the ACLU.

Twenty years ago today, on June 6, 1994, the US Supreme Court unanimously ruled that Dee Farmer, a black transgender woman who had experienced a brutal rape and assault at the US Penitentiary at Terra Haute, Indiana, could hold prison officials accountable for their “deliberate indifference” to the risk of harm they knew she faced as a transgender woman.

Dee Farmer began that case representing herself, risking retaliation for speaking out about what happened to her. The ACLU National Prison Project joined in her case. Farmer’s initiative ultimately changed the legal landscape for prison assault cases as well as the public dialogue about rape in prison.

With Dee Farmer’s blessing and support, a national symposium will be held at Columbia Law School on November 14, 2014 to assess the landscape LGBT prisoners face. Titled Deliberate Resistance: LGBT Prisoner’s Rights 20 Years after Farmer v. Brennan, the event will bring together a wide range of activists, lawyers, academics and advocates. The symposium will focus on four of the factors underlying Dee Farmer’s case: the rights of prisoners to hold government officials accountable for their failure to protect; the movement to end sexual abuse in prison; the ongoing effort to secure appropriate housing for LGBT prisoners; and access to appropriate and necessary medical care in prison.

We write this piece today, on the 20th anniversary of Farmer v. Brennan to mark the fact that while much has changed over the past 20 years, the unacceptable epidemic of sexual violence in prison persists despite legal mandates and legislation. Lesbian, gay, bisexual and transgender prisoners face widespread and pervasive violence, inadequate health care, mental health consequences from discrimination and violence and exclusion from educational services and programs. (See Columbia Law School’s A Roadmap for Change, p. 22).

The legacy of Farmer has been significant, if mixed, in its impact. Courts have interpreted Farmer to impose a duty on prison officials to protect a prisoner when they had knowledge of the vulnerability (s)he faced. In 2003, Congress passed, and President George W. Bush signed, the Prison Rape Elimination Act (PREA), which in turn created a Prison Rape Elimination Commission to promulgate regulations on how to eliminate sexual violence. It took the Department of Justice (DOJ) until 2012 to issue these regulations, and it was only earlier in 2014 that the Department of Homeland Security extended PREA’s provisions to immigration detention facilities.

Meanwhile, the harassment, discrimination and violence against LGBT prisoners persists. A study of sexual assault in California prisons published in 2007 found that transgender prisoners placed in men’s prisons were 13 times more likely to be sexually assaulted than non-transgender prisoners with 59% of transgender study respondents reporting being sexually assaulted in a California correctional facility. And with the underreporting of sexual violence in prisons, that number is likely higher. Transgender and LGB incarcerated persons also report of the abusive searches, endemic harassment, physical assaults, denial of basic health care, prolonged isolation and violent housing placements that transgender endure in prisons, jails, juvenile detention, immigration detention facilities and lock-ups across the country. (See NCTE’s Standing with LGBT Prisoners as a resource).

In addition to facing staggering rates of violence while incarcerated, transgender people, particularly transgender women of color, are also being funneled into the criminal justice system at alarming rates. In the 2011 National Transgender Discrimination Survey with over 6,000 transgender respondents, 47% of black transgender women reported having been incarcerated at some point in their lives.

The work to end prison violence requires two things. First, it requires leadership by the DOJ, State Attorney Generals, corrections officials at every level, police and law enforcement officers to implement the reforms won through litigation and legislative enactment. Those entrusted with administering public safety have enormous power and discretion to act in ways that would protect all incarcerated persons from sexual violence. They must use their power proactively to prevent and address abuse and violence.

Some argue that a private right of action in PREA may be the only way to incentivize such a commitment and we support that call. In the interim, prison, jail and detention center policies can be changed in countless ways to address the specific needs of LGBT people – as a recent report published by the Center for Gender & Sexuality Law at Columbia Law School (CGSL) outlines, alternatives to incarceration can be expanded to channel as many people as possible into less violent environments. And the wholesale segregation and isolation of transgender and LGBT prisoners can be abolished.

Second, ending prison violence requires the civil rights community, criminal justice reformers, and LGBT organizations to focus on ending mass incarceration. Criminal justice policy must become a priority for the LGBT movement. This is one of the aims of the newly formed LGBT/HIV Criminal Justice Policy Working Group, coordinated by the Center for Gender & Sexuality Law, and including the ACLU, NCTE, and 15 other organizations. The Working Group members are engaged in litigation, education, organizing, and advocacy in partnership with grassroots groups working to address the criminalization of LGBT people and people living with HIV (PLWH).

People like Dee Farmer in prisons and detention facilities are taking great risks to stand up for themselves and change conditions of confinement. It is essential that the LGBT movement stand with them to end abuse and violence and achieve a more just world.

Religious Discrimination & Racism: It’s Not Old News


Posted on June 4th, 2014 by Kara Loewentheil
 2 comments  

In conversations about our work on religious exemptions law, I frequently compare the refusal to provide wedding-related services to gay couples or reproductive health care to women for religious reasons to the widespread refusal to provide services to African-Americans for religious reasons before, during, and even after the Civil Rights Movement. This comparison is most often met with dismissive incredulity: my audience insists that this did not happen, or that if it did, it was not widespread. But in fact, religious doctrine was routinely used to justify the extensive oppression of, and discrimination against, African-Americans, beginning with religious justifications for slavery and continuing through the 20th Century, particularly in the South under Jim Crow.  These arguments were more widespread before the Civil Rights Movement, but even as late as 1983 Bob Jones University, a Christian-affiliated school, was arguing in the Supreme Court that its racially discriminatory dating and marriage policies for students were constitutionally protected as a free exercise of religion. (The Supreme Court disagreed).

As it turns out, this argument is not old news. A new poll released this week finds that a full 10% of Americans think that business owners should be allowed to refuse service to African-Americans if the refusal is religiously-motivated. (Not to mention the 16% who believe business owners should be allowed to refuse service to LGBT individuals – that number is 15% when polled about refusing service to atheists and 12% for refusing service to Jewish individuals). Although that means the overwhelming majority of those polled do *not* support such exclusions, it’s still a striking result.

We should be concerned about these results not only for their face value, but because they point to a dangerous slippery slope. If we allow for-profit businesses (or even non-profit entities providing public services with public dollars) to refuse services to LGBT people or women on the basis of religious belief, we’re not just slowing or halting progress on civil rights – we’re actually leaving ourselves open to dramatic erosion. It’s hard to come up with a principled reason why a business should be allowed to discriminate, for religious reasons, on the basis of sexual orientation, gender identity, or sex – but not on the basis of race or another religion.

The real difference is that we have a national consensus that formal race discrimination (i.e., race discrimination directly allowed by law) is socially unacceptable. (I’m leaving aside the myriad consequences of more invisible structural racism – on which we do not have a social consensus at all). We don’t have that consensus on gender and sexual orientation. But social consensus can be a dangerously shifting base on which to build our civil rights protections. If the polls on refusing services to African-American or Jewish individuals show a growth in the numbers who find that outcome acceptable, and we have allowed religious refusals of services based on sex and sexual orientation, we are going to have a hard time preserving even the formal civil rights protections that those who came before us fought so hard to obtain.

Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Columbia Center for Gender and Sexuality Law. 

Religious Accommodation’s Roots in Legal Pluralism


Posted on June 2nd, 2014 by Cindy Gao
 1 comment  
Photo credit: Wyoming Jackrabbit

Photo credit: Wyoming Jackrabbit

From Center for Gender and Sexuality Law Director Katherine Franke, originally published in States of Devotion on April 21st.

The accommodation of a normative claim made in the name of religion often entails the surrender of governance authority by a competing norm aimed at advancing equality or sexual liberty. In this sense, the demand for an accommodation of religion is at once jurisgenerative and jurispathic.[1]

In this blog post I want to do a bit of critical thinking about the political space cleared out by the assertion of religious free exercise rights. That is to say, what does the demand for an accommodation of religion actuallydo? Can it be understood as an assertion of a kind of governance authority? What kind of political work might robust religious exemptions accomplish?

Consider this: one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme.

Unlike the pluralistic legal cultures present in South Africa, India, or Israel, we have a strong tradition of a unitary source of law here in the US. In important ways, the claim to religious exemptions poses a serious challenge to the singular authority of law in our legal culture.

Some have argued that the free exercise clause asks nor more than that we tolerate religion and the norms that are generated in its name. But as Wendy Brown has taught us in her work, tolerance is not able to assert a claim on the political.[2] Indeed it is, at bottom, a discourse that depoliticizes the claims made in its name.

In this sense claims to religious exemptions do much more than assert a demand for tolerance of value pluralism: they present a challenge to the unitary sovereign authority and general applicability of secular law. They mobilize a direct challenge to the political, by and through an unambiguous claim to governance.

Not coincidentally, the claim to a kind of political power from the camp of religion that we witness today is in direct reaction to a similar claim made on behalf of the lesbian and gay community’s advocates. A demand for tolerance could not have mobilized a substantive right to marriage for same-sex couples. And a claim to tolerance cannot justify the arguments made by Hobby Lobby or Elane Photography to be excused from the jurisdiction of secular legal norms and in their place substitute the commands of a competing form of authority. To launch such claims requires a kind of “will to power” that well exceeds a demand for tolerance, and we will be well served by committing more thinking to the very nature of the kind of power mobilized by these kinds of claims.

This is where I imagine real work and hard thinking is yet to be done: the gay community has pursued a democratic, political process to change the law on the basis of substantive claims to justice made internal to the governance authority of secular legal principles, and the law has so changed. A mere plea for tolerance could not have launched that project. By contrast, the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority. The implications of this kind of claim are, in my view, quite radical and deserve much deeper scholarly attention to unpack and elaborate the kind of political promiscuity it may open up.


[1] I borrow these terms from Robert Cover in Nomos and Narrative, 97 Harv.L.Rev. 4 (1983).

[2] Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (2008).

 3 comments  
miss-the-point

Image Credit: Andrew Schwab

 

Another day, another dispatch from the national variety of litigation over the Affordable Care Act’s contraceptive coverage requirement. Last week a federal district court in Iowa granted a preliminary injunction to two “religiously-oriented colleges,” Dordt College and Cornerstone University (both Christian-affiliated), to allow them to continue their noncompliance with the Affordable Care Act’s (ACA) contraceptive coverage requirement. Applying the usual preliminary injunction standard, the district court was required to evaluate the harm that would come to the plaintiffs if they were required to comply with the law and the harm that would occur if they were allowed to continue their noncompliance. It was easy for the court to understand the harm that the plaintiffs alleged; according to the opinion they might “suffer irreparable harm . . . in that they would be forced to comply . . . to the detriment of their religious exercise.”[1] Fair enough as far as it goes. We may not all agree that the harm involved on the facts of this case would actually be that bad (and we would argue it does not even constitute a legally cognizable harm), but we can agree that loss of constitutional rights does constitute a harm, and at a preliminary stage of litigation, given the conflicting opinions in other courts around the country on this question, it’s not unreasonable for a court to contemplate the idea that requiring enforcement of the law might later turn out to have been a constitutional violation, which would then be an irreparable harm.

Now what about the harm on the other side? Apparently there was very little, as the court wrote that the harm was “only” that the law “may apply to Plaintiffs a few months later than expected.”[2] And here is where we run into trouble. Because that is not the only harm at all. It’s not even the most important harm. This bizarre framing of the harm – that the government won’t get to apply the law right away – positions the counterbalancing interest in this case as simply the government’s desire or right to apply a law. What law? Apparently any law would be the same. The phrasing minimizes the harm, neutering the real interests at stake and turning it into a kind of yawn-inducing trifle.

The problem is that the decision takes no heed of the fact that the government’s interest in enforcing the law is not just in exercising its regulatory power for the sake of it, but in protecting the plaintiffs’ female employees’ access to a statutorily-entitled insurance benefit. Some would argue (ourselves included), that the contraceptive coverage requirement is actually an important equality right with practical and symbolic dimensions, but even without taking the analysis to that level, it is beyond argument that granting an injunction means that for however long the injunction is in effect, female employees of the colleges in question are being denied a statutory right. How to balance that right against the potential of a free exercise violation is the next step in the analysis, but there’s no hope of even getting there when women are so consistently written out of the picture by courts when they are considering what’s at stake in these cases.

 


[1] Dordt College v. Sebelius, No. C 13-4100-MWB, at *6, Order Regard’g. Pls.’ Mot. for Prelim. Inj., (May 21, 2014  N.D. Iowa).

[2] Id.

Kara Loewentheil is a Research Fellow at Columbia Law School and the Director of the Public Rights / Private Conscience Project in the Center for Gender and Sexuality Law.

*Image sourced from http://anotherschwab.com/2013/09/30/missing-the-point-of-edtech/.

 

What Do Tractors Have to Do With Birth Control?


Posted on May 21st, 2014 by Cindy Gao
 1 comment  

From Center for Gender & Sexuality Law Public Rights/Private Conscience Director Kara Loewentheil.

2013 tractorWhat do tractors have to do with birth control? I’m glad you asked. To find out, let’s take a look at a fascinating exchange that occurred recently during oral argument in one of the cases challenging the Affordable Care Act’s contraceptive coverage requirement. The dialogue was between the counsel representing Priests for Life and Judge Rogers of the United States Court of Appeals for the D.C. Circuit.[1] During oral argument, Judge Rogers launched a line of questioning based on a seminal case, Thomas v. Review Board of the Indiana Employment Security Division, in which the plaintiff, a Jehovah’s Witness, unsuccessfully applied for state unemployment benefits after quitting his job because the factory where he worked had transferred him from a closing “roll” department (which manufactured steel for industrial uses) to a department that produced turrets for military tanks. The Supreme Court held that the denial of unemployment benefits had violated Thomas’ free exercise rights, and famously opined that:

Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is ‘struggling’ with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.[2]

Building on this case, Judge Rogers asked counsel for Priests for Life:

Would it have been open to the Court to have found that in fact, as a matter of fact, the munitions factory for which it [sic] worked was not supplying arms for the war, that in fact it was supplying gadgets for tractors used on farms? Could the Court have examined whether his statement about what his employer was doing was correct?

The Priests for Life lawyer responded that no, it could not, saying that “Even if the religious belief is based on a factual error, the court must accept that factual error.”

I want to highlight here the way in which this claim has implications beyond the particular cases that were heard at oral argument, which only focus on the accommodation offered to religiously-affiliated institutions. The position taken by the counsel for Priests for Life in the oral argument referenced above would insulate not only unknowable metaphysical questions, but distinctly knowable scientific and medical questions, from review when they are presented in the context of a request for a religious accommodation. The Court in Thomas v. Review Board was dealing with a situation in which the plaintiff’s chosen line – that he would work on steel for industrial uses but not for weapons – seemed like a reasonable line to draw, given the context of his beliefs. That was the question that the Court, rightly or wrongly, insulated from review. Thomas had said that he would not object to helping produce raw steel that could later be made into weapons, but that he did object to producing the weapons themselves. This was the distinction that the Court said was not appropriate to review. Whatever we may think of the implications of that sentiment, or how expansively it should be read, the idea that a mistake of fact cannot be reviewed is an entirely different – and enormously more capacious – assertion.

As an example of the danger of this principle, we need look no farther than contraceptive access, both in the other contraceptive coverage requirement cases and in other types of claims for accommodations that can impede contraceptive access, like pharmacist refusals and hospital services.  The entire basis of the claims in Hobby Lobby and Conestoga Woods is that the plaintiffs don’t object to providing insurance coverage for contraception generally, but “merely” those forms that they believe are abortifacients. “Believe” is the key word – the scientific and medical definition of abortion is the termination of a pregnancy, and a pregnancy only occurs when a fertilized egg has implanted in a woman’s uterus. The vast majority of scientific research and authority supports the proposition that contraception, including emergency contraception, works by preventing implantation, and does not affect an existing pregnancy. The assertion that a court cannot question the scientific validity of this belief – which, remember, is not a belief about the metaphysical question of “when life begins” but a belief about the scientific question of what constitutes a pregnancy and what can end it – insulates the entire matter from judicial review.

It is no accident that courts have been willing to by and large ignore the factual discrepancy between the “belief” about what constitutes an abortion and the medical fact about what constitutes an abortion in the contraceptive coverage requirement cases. Abortion exceptionalism means that when cases concern abortion – and these days, contraception – the usual rules of play seem to be suspended. It is hard to imagine that if the plaintiff in Thomas truly had been working in a factory that produced tractor parts, courts would have been as sanguine about that error as they seem to be about the idea that emergency contraception causes abortions, nor as willing to give it credence simply because it comes to them attired in the garb of a religious belief.


[1] Thanks to our colleagues at Hamilton and Griffin on Rights for alerting me to the exchange featured in this posting. They too note at the end of their post the connection to the contested definition of abortion I have explored here. I have relied on their transcription of the argument for this post.

[2] Thomas v. Rev. Bd. of the Indiana Emp’t Sec’y Div., 450 U.S. 707, 715 (1981).

The Gay Marriage Story Jo Becker Needs to Hear


Posted on April 23rd, 2014 by Cindy Gao
 3 comments  

FRANK-Book-Pic-Medium-e1390314781757From Center for Gender and Sexuality Law Visiting Scholar Nathaniel Frank, originally published in Slate on April 22nd.

One fall day in 1990, Ninia Baehr found herself with an ear infection and no health insurance. When the pain became unbearable, she and her partner, Genora Dancel, called Bill Woods, a lawyer at a Honolulu gay and lesbian community center, to see if there were any options for domestic-partner insurance benefits. Woods said no, but as it happened he’d been looking for couples to challenge the Hawaii law barring gay couples from getting married. He asked Baehr and Dancel if they’d join. Dancel, who wasn’t out to her family, was hesitant, and thought hard about it. “I said to myself, ‘This is what my life has led up to,’ ” she recalled. “I’m tired of being treated differently, and I have as much right as anyone else to get married.” The next morning, Baehr and Dancel, along with two other couples, applied for a marriage license from the Hawaii Health Department. They were denied. So they decided to sue. A revolution had begun.

If you get hold of Forcing the Spring, a much-touted new book out today, you could be forgiven for thinking that revolution began 15 years later, in 2008. And that the success of gay marriage—it is now allowed in 17 states and the District of Columbia, supported by a solid majority of Americans, and poised to be legal nationwide in a matter of years—was not the product of intrepid gay activists who bravely came out, demanded dignity, and slowly but indefatigably brought the world along with them. Rather, it came about due to a tiny group of gay and straight strategists and lawyers who started the movement nearly from scratch six short years ago—against the wishes of hapless gay leaders who had run their movement into the ground.

“This is how a revolution begins,” commences Jo Becker, a Pulitzer Prize-winning New York Times reporter, in her new book, explaining that the gay marriage movement had “languished in obscurity” until 2008, when a young political consultant named Chad Griffin grew impatient and deployed his “unique ability” to leverage his Hollywood connections to “rebrand a cause.” It was a cause, argues Becker, that had to be rescued from established gay advocates who had spent 40 years doing virtually nothing worth mentioning in a major history of the marriage-equality battle. The book, excerpted in Sunday’s New York Times Magazine, focuses on Ted Olson and, to a lesser extent, David Boies, two straight lawyers recruited by Griffin and funded, initially, by Hollywood stars to challenge California’s Proposition 8, the 2008 ballot initiative that revoked gay marriage in that state. Olson and Boies were on opposite sides of the 2000 Supreme Court battle that landed George W. Bush in the White House, and their teaming up to fight for gay marriage was a brilliant coup by Griffin. Olson’s conservative bona fides and eloquence in embracing the cause of gay marriage was enormously valuable in growing support for the cause just as it was reaching a tipping point.

Yet that’s a far cry from suggesting that this small, well-heeled group was responsible for bringing the nation gay marriage, or for a major leap in public approval, something that was in the works long before these players arrived on the scene, and which was jolted forward by widespread national anger against Prop 8, not just the anger of Chad Griffin and Ted Olson.

The actual revolution that led to gay marriage began, of course, not in a spacious San Francisco hotel suite in 2008 but on the streets of New York in 1969, when LGBTQ activists got tired of perpetual abuse and chose to fight a police raid at the Stonewall Inn. This remarkable uprising, which built on earlier efforts that can be traced back to the first gay rights organization in Chicago in 1924, led to gay marriage lawsuits in the early 1970s that were laughed out of court but were followed by the victorious 1993 Hawaii ruling that launched the gay marriage revolution.

And let’s be clear how we’re using revolution. This revolution began within the LGBTQ movement, which had been split over thoughtful, principled differences about the value and role of marriage in the social structure and, specifically, for the LGBTQ population. It was not a split between appeasers of the forces of inequality and heroic young proponents of change who were the first to consider that barring gays from getting married was an injustice that needed to end right quick. And it was undertaken not by straight, white-shoe superlawyers, but by LGBTQ activists, passionate and at times brilliantly strategic, who put themselves on the line when most of the world found them and their claims detestable.

How any of this can be left out of a book whose subtitle is Inside the Fight for Marriage Equality, and whose marketing material breathlessly broadcasts the author’s “free rein in the legal and political war rooms where the strategy of marriage equality was plotted” is a major mystery that some intrepid reporter may one day unravel. The book relegates Edie Windsor and Roberta Kaplan, the plaintiff and litigator who actually brought gay marriage to the Supreme Court and won, to the back of the bus, bringing them up only to hand that victory to Olson and Boies, who joined the cause at the last minute.

Indeed, that cause has taken 40 years (and counting). And Becker’s book doesn’t just erase the contributions of the main characters of this struggle; it casts them as profound obstructionists, portraying one of the earliest and most important leaders of the marriage movement, Evan Wolfson, as a seething, grumbling crank who sought slow change for its own sake and who gratuitously refused to make room for new collaborators. Nothing could be further from the truth.

Jo Becker was granted extraordinary access to the Griffin-Olson team’s effort to overturn Prop 8 and to use that victory to get an immediate Supreme Court ruling allowing gay marriage in all 50 states. It was a high-risk strategy—at the time, only two states had marriage equality, making it very unlikely the Supremes would issue a decision forcing it on the remaining 48—that ultimately failed (though, to be sure, it did much good in amplifying the national conversation about gay equality). Yet Becker’s access clearly blinded her to the need to conduct basic research outside of the star-studded cadre of strategists and lawyers whose heroic tale she dutifully and uncritically tells in her book.

Becker should have done her homework, but she didn’t. So below I offer a preliminary and partial corrective, a highly abridged history of some of the indispensable developments that Jo Becker’s story unconscionably left out, events that led to what is surely now an unstoppable trajectory toward marriage equality in all 50 states. It is based on both publicly available sources and extensive interviews I have conducted over the last five years for various articles I wrote while covering the marriage-equality battle, including with most of the key players that Becker does and does not cover.

As the Honolulu lawyer Bill Woods prepared for his lawsuit, he reached out to the ACLU and Lambda Legal, the nation’s pre-eminent gay legal advocacy group, for help. The ACLU declined, in part because its local office found little enthusiasm among community members for gay marriage. So Ninia Baehr reached out to Evan Wolfson, a gay legal strategist she’d met when living in New York. Wolfson worked at Lambda, and was known as a fierce advocate of marriage equality. Even before he wrote a 1983 Harvard Law School paper, “Same-Sex Marriage and Morality: The Human Rights Vision of the Constitution,” Wolfson had viewed the freedom to marry as a proper goal of the larger gay rights movement, and he said so at every opportunity.

Wolfson quickly came to see that marriage equality was not only a noble end in itself but the perfect vehicle to help the nation truly grasp the equal dignity of gay people. In this view, he was joined by Andrew Sullivan, the prolific gay author who, in 1989, wrote a high-profile New Republic cover story making a conservative case for same-sex marriage. Though the liberal Wolfson and the conservative Sullivan had very different politics, the two became friendly co-conspirators as they crisscrossed the country arguing for a very simple idea—equality—in the face of derision, deafness, and worse.

Resistance and neglect came not only from the straight world—in its 1986 Bowers decision upholding sodomy bans, the Supreme Court had dismissed the very notion of a gay claim to equal dignity as “facetious”—but from LGBTQ people, many of whom did not view marriage as a worthy priority. But this was not because gay people didn’t feel passionately about their own equality, as Becker, through her protagonists, suggests. It was because many other concerns preoccupied them, particularly the AIDS epidemic, which decimated entire communities and put the need for relationship protections front and center. Many lesbians, although often intimately involved as caretakers of HIV-positive men, faced other pressing concerns when they came out of straight marriages and had to fight for custody of their children. Many viewed marriage as the source of their woes, not the solution. In short, many gay and lesbian advocates found marriage to be totally at odds with their lifelong fight for liberation from social arrangements they considered stifling, patriarchal, and exclusionary.

Indeed, marriage was one of the most contentious issues that gay lawyers debated when they convened at what became a gay legal “roundtable” in the 1980s—both whether and how to achieve it. “One bad loss can mean wiping out a generation of rights,” said Paula Ettelbrick, who had led Lambda Legal, referencing the Supreme Court’s 1986 Bowers decision upholding sodomy bans. The lawyers accepted a heavy sense of duty to the future. “We didn’t want to screw the whole thing up for generations to come,” said Ettelbrick, “and took very seriously our responsibilities as lawyers to be prudent and thoughtful when messing with the constitutional rights of millions.”

These pragmatic concerns, along with the alternate ideological vision many activists shared, meant the legal groups were not keen to embrace gay marriage as a top priority—though for highly principled reasons, not the ineptitude and lack of concern for equality that Becker’s book implies. To Wolfson’s regret, Lambda would not take up the Hawaii case.

So the plaintiffs turned to Dan Foley, a straight lawyer who had previously worked at the ACLU of Hawaii and who accepted Wolfson, with Lambda’s blessing, as a adviser on the case. Foley was eager to take the case, but he had little hope they would actually win. Nor did most others in the legal—or gay—communities. So nearly everyone was shocked when, on May 5, 1993, the Hawaii Supreme Court ruled that the state constitution, which prohibits gender-based discrimination, guarantees equal protection to same-sex couples wishing to get married.

Conservatives swung into action, planning legislation and constitutional amendments to ensure they would not have to recognize gay marriages performed in Hawaii. In 1996, the federal government passed the Defense of Marriage Act, which defined marriage as exclusively heterosexual and said no state had to recognize a gay marriage performed outside its borders. In 1998, before Hawaii could implement the freedom to marry, voters in the state chose to amend the constitution to bar same-sex marriage, rendering any further action by the courts moot. Hawaii had been a critical victory, though it had also led to backlash in the form of DOMA and numerous state marriage bans, another cautionary tale about the perils of litigating before the climate is ripe.

Mary Bonauto had joined Boston’s nonprofit Gay and Lesbian Advocates and Defenders in 1990, where she quickly became Evan Wolfson’s sister-in-arms. The two were among the most vocal proponents of marriage equality as a priority for the gay rights movement—cautious but determined. In the late 1990s, even as colleagues continued to balk, Bonauto geared up for battle. With Wolfson’s blessing, GLAD moved forward in Vermont, a state with several advantages over Hawaii, including a court with positive past rulings and a constitution that was hard to change. In December 1999, the Vermont Supreme Court ruled unanimously that those in gay unions were entitled to the same benefits and protections as married people. The court did not force the state to let gays and lesbians wed, but invited the legislature to create a separate institution, which became known as “civil unions.” It wasn’t marriage, but Vermont was the first state in the union to offer gays the same marital rights as straights, minus the all-important word itself.

The momentum of the Vermont decision was unstoppable. “Once Vermont was over, the pressure on us to file something in Massachusetts was intense,” said Bonauto. On April 11, 2001, days after the state’s first female governor, Republican Jane Swift, announced she would veto any gay marriage bill that hit her desk, GLAD sued the state of Massachusetts. In the meantime, the Supreme Court issued a major decision in June 2003 in the case of Lawrence v. Texas, brought by Lambda Legal. In a sweeping ruling, the court said the shrinking number of states that still had anti-sodomy laws on the books, now reduced from 24 to 13, revealed “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” It reversed its own ruling in Bowers from just 17 years earlier, clearly helped along by the fact that so many additional states had scrapped their own bans—further evidence that a state-by-state strategy is key to a national win at the Supreme Court.

On the heels of Lawrence, and citing the case repeatedly, Massachusetts became the first state court in America to strike down its gay marriage ban without leaving an easy recourse for reversal. Like Vermont, Massachusetts had a difficult constitution to amend, and gay groups had worked for years to build support for gay families to avoid the fate of Hawaii.

Backlash was immediate. That November, as Bush won re-election, voters in 11 states chose to amend their constitutions to ban gay marriage. Under the direction of Karl Rove and Ken Mehlman, who was then the closeted director of Bush’s re-election effort, the campaign had devised a strategy to draw conservative voters to the polls by putting anti-gay-marriage initiatives on the ballot in several key states. (Mehlman later came out and threw himself into the marriage equality battle. He is featured prominently as a hero of the cause in Becker’s account.)

The 2004 defeats devastated morale among gay rights advocates. As the 1993 Hawaii court victory had led to DOMA in 1996 (and to state marriage bans as well), the catastrophic losses in 2004 were, in part, a backlash to the pro-gay Massachusetts and Lawrence rulings, which mobilized anti-gay forces to write difficult-to-reverse bans into law. This historical reality—not some inexplicable timidity on the part of gay legal advocates—was more than enough to breed caution when considering yet more legal actions that could produce more long-term setbacks.

Yet while some movement leaders retrenched in the face of these setbacks, Wolfson and other movement actors were pushing ahead. And it’s here that Becker’s sloppy narrative runs into more trouble. Becker defines “the gay rights movement” as a monolith, a “constellation of established groups” committed to a plodding, incremental approach. It is true that the main LGBTQ legal minds took a brick-by-brick approach to winning marriage equality; they correctly reasoned that the best chance of winning it nationally was by reaching a critical mass of states and public approval before taking it to the Supreme Court. But this is hardly the “tranquilizing drug of gradualism” that Oscar-winning screenwriter Dustin Lance Black accused gay movement leaders of accepting at a 2009 speech that Griffin helped orchestrate. “The strategy of the past decade has failed,” Black declared after quoting Martin Luther King Jr. to a group of veteran civil rights activists, appearing to lay blame at their feet. “It is time for us to stop asking for crumbs and demand the real thing.”

Becker uses the episode to endorse the idea that the gay movement had failed because it was too timid, and that Black, Griffin, and Olson were poised to rescue it from obscurity. Yet if any single group in the “gay establishment” was counseling gradualism, it was the Human Rights Campaign, the world’s largest gay lobbying group, which ate up more than $40 million in gay money every year and, up to that point, had not a single major national legislative win to show for it. Becker might not know about HRC’s retrenchment from the marriage battle or the years of righteous anger directed at HRC’s failures by the rest of the LGBTQ community because she seems not to have done any real research outside her access chamber. And she wouldn’t likely have heard about it from Chad Griffin, because, on the strength of his high profile in the Prop 8 case, he became the group’s president in 2012. Again and again HRC had pulled back from the marriage-equality battle, with its leaders and spokespeople defending incrementalism, touting civil unions instead of marriage, and even reportedly pushing out one leader because she made marriage too high of a priority. Following the 2004 ballot losses, theNew York Times reported that HRC planned to “adopt a selective and incremental approach to winning rights rather than reaching for the gold ring of marriage right away.” Critics of HRC said it was “entirely characteristic” of the group “to believe that what is required is a sort of retrenchment and a return to a more moderate message.”

The point is not that incrementalism is necessarily a bad or cowardly strategy; it’s that what Becker paints as a contest between the entire gay rights “establishment” and a tiny sliver of outside-the-movement saviors was in fact a principled strategic debate within the gay rights movement across decades. And notably, HRC was on the side of gradualism that Griffin and Black lambasted and that Olson and Boies tried and failed to leapfrog. (This makes it amusing that Hilary Rosen, one of the HRC leaders who retrenched from marriage in favor of civil unions, is now doing public relations for HRC that includes e-blasting its 1.5 million members to tout Becker’s book and the heroic narrative it tells of Chad Griffin.)

It was frustration with the timidity of groups like HRC, which, like Becker, too often seemed to prize access over results, that drove a course correction in the gay rights movement, not the arrival of movement parvenus quoting Martin Luther King. Following the 2004 disappointments, the state-by-state work that advocates like Wolfson had been promoting took on greater appeal to other movement players. In 2003, Wolfson began Freedom to Marry, an umbrella organization designed to support groups across the country working for marriage equality. At the same time, dozens of small, state-based organizations began strategizing about how to secure equal rights on a state-by-state basis. As a final piece of the puzzle, and particularly after the 2004 ballot losses, major funders such as the Gill Foundation, began to direct grants in support of same-sex marriage into carefully selected states where wins seemed most viable.

As part of this work, they also began to direct money to state political races, in an effort founder Tim Gill pioneered to create pro-gay legislatures. Although nonpartisan in principle, they targeted states where throwing the legislature to Democratic control might make the difference in winning gay marriage legislatively, or defending it from a referendum once it was won. Having helped turn the Colorado state house Democratic in 2004 with hundreds of thousands of dollars of support, Tim Gill was sold on the idea that gay donors could “punish the wicked.”

This state-focused strategy worked in conjunction with gay marriage litigation and was instrumental starting in Iowa. Armed with confidence from the win in Massachusetts, and with knowledge that Iowa was being targeted for support by large gay donors, Lambda filed suit in the state in December 2005. On April 3, 2009, the ruling in Iowa created another earthquake in gay rights when it overturned the state’s gay marriage ban. On cue, opponents vowed to fight to amend the constitution. But the legislature was now controlled by Democrats friendly to the gay donors who had helped put them in power, and so the ruling survived.

As the first non-coastal state to allow gay marriage, Iowa was pivotal. A week after the Iowa decision, the Vermont legislature overrode the governor’s veto to allow same-sex marriage for the first time without a court order. Legislators were explicit about how one state built on the next. “There’s no question the fact that Massachusetts had marriage, and that Connecticut had court-ordered marriage, and then Iowa—definitely this leadership from the courts was tremendously important,” Vermont Gov. Peter Shumlin told me back when, as president of the state senate, he led the state’s legislature to pass gay marriage. And the vote in Vermont started more dominoes falling. Next came Maine, whose legislators were talking to those in Vermont. On May 6, 2009, Gov. John Baldacci signed a freedom to marry bill into law. (It was reversed by voters that November but was finally reinstated by voters in 2012, legalizing gay marriage there, as well as in Washington and Maryland, in an election that marked the first time popular ballot initiatives went for, instead of against, gay marriage.) On June 3, New Hampshire Gov. John Lynch signed a marriage-equality bill into law. In December, Washington D.C. followed suit.

And so the dominoes were falling, just as the gay legal groups had planned them to, when the Griffin-Olson effort burst onto the scene in 2009, charging ahead with its risky plan to secure a constitutional right to marriage in all 50 states. The plan failed, as the Supreme Court threw the case out for lack of standing, suggesting that the cautious view of the gay lawyers Becker derides was absolutely right: There weren’t enough justices ready to declare a constitutional right for gays to marry, as Olson had hoped. It was an entirely different case, the one brought by Edie Windsor challenging the Defense of Marriage Act, that won at the Supreme Court and has been cited most widely by federal judges knocking down gay marriage bans.

Facing intense criticism for her highly selective narrative, Becker told Politico that her book is “not meant to be a beginning-to-end-history of the movement” but is simply “about a particular group of people at an extraordinary moment in time.” This is a wholly predictable and unsatisfying response for an author whose website touts the book as “the definitive account of five remarkable years in American civil rights history” that encompasses “all aspects of this momentous struggle.” Which is it—a profile of a small group of participants or the definitive account of “all aspects” of the marriage equality battle?

By far the most egregious—and historically harmful—thing about Becker’s narrative is the total misunderstanding of what the actual strategy to win national marriage equality has been—and how it’s succeeding. The whole point of the incremental, state-by-state strategy is to secure marriage nationally through a Supreme Court win as soon as it’s achievable, while avoiding the catastrophic setbacks that history shows can occur if litigation goes forward before the climate is ripe for a win. The Olson playbook tried to leapfrog this timeline, and couldn’t, so the implication that his approach was the heroic one that saved the movement from itself is ludicrous.

In a Times Q&A, Becker writes that the gay establishment’s strategy before Olson blasted it apart “had not been to bring a federal lawsuit, but instead to fight this state by state” and that outsiders rightly changed course, “because the passage of Prop 8 had galvanized this small group of very connected people.” It was Griffin and Olson alone, she seems to think, who viewed Prop 8 as “an opportunity to take this from what had been a partisan legal debate to try to turn it into a civil rights conversation.” This is wretched history. The gay legal strategy was precisely to bring a federal lawsuit, but to do it at a time when it would succeed (after building up enough states), which the Prop 8 case did not. And it was the gay legal “establishment” that, decades ago, first understood the critical value of lawsuits in creating a national conversation to bring about gay equality.

But glibly dismissing the state-by-state strategy as an overly cautious failure allows Becker to cast her protagonists as heroes who swooped in and set a failing movement right. She suggests that some brief conversations Griffin had with the president and vice president were single-handedly responsible for their decision to support gay marriage. Never mind the prior and simultaneous work of numerous other actors whose patience and tenacity successfully played the long game—including the public and private pressure of numerous activists and bloggers, some of whom had far less access to power.

Ultimately, Becker implies that the righteous impatience—and even impetuousness—of Griffin and Olson were responsible for driving a “tectonic shift on the issue of marriage equality” and “bring[ing] marriage equality to the nation.” Note: This hasn’t happened yet—fewer than half the states have marriage equality—so this suggestion is absurd on its face. Becker simply assumes that her protagonists caused, rather than reflected, a shift already well under way—in 2011, several polls showed that, for the first time, a majority of Americans favored same-sex marriage, but the trend had been moving more or less steadily upward since the 1990s. In reality, the Griffin-Olson team joined the cause at the 10-yard line, did terrific work in moving the national conversation forward, and tried a risky strategy to win nationwide marriage equality at the Supreme Court—which failed. They added (back) exactly one state, California, furthering the successful state-by-state strategy that was already winning because of the lifelong work of Evan Wolfson, Mary Bonauto, and countless other gay advocates. That work will be responsible for national marriage equality when it finally happens.

 8 comments  

Amicus Brief Argues Against Cosmetic Genital Surgery on Intersex Infants Because of Long-Term Harms

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

New York, April 9, 2014—The U.S. Court of Appeals for the Fourth Circuit should protect the right of an intersex child to recover damages from doctors who authorized and performed irreversible and unnecessary cosmetic genital surgery on him during infancy, the Columbia Law School Sexuality and Gender Law Clinic argues in an amicus brief filed with the court today.

The clinic’s brief, filed on behalf of the AIS-DSD Support Group, an organization that serves intersex individuals and their families, supports the claims of M.C., an intersex child born with ambiguous genitalia. While in foster care in South Carolina—with authorization from social workers—M.C. was subjected to surgery that removed healthy genital tissue and “assigned” M.C. to be anatomically female. Now 8-years-old, M.C. has developed a male gender and clearly identifies as a boy. The case is M.C. v. James Amrheim, et al.

“The state should not have made the decision to subject M.C. to this life-altering surgery,” said clinic student Rebecca Ramaswamy ’15, who worked on the brief. “M.C. was forced to undergo this procedure purely for cosmetic purposes. Medical experts have long recognized the trauma this irreversible surgery causes and the need for surgeons to wait so that an intersex person can decide whether and to what extent to undergo surgery to change their genitals’ appearance.”

Olena Ripnick-O’Farrell ’14, who also worked on the brief along with Chance Goldberg ’15 and Asmita Singh ’14, agreed.

“International bodies have long condemned the use of surgery to alter the appearance of intersex infants,” Ripnick-O’Farrell said. “Performing cosmetic genital surgery on infants has been recognized as a human rights violation by the United Nations and the Parliamentary Assembly of the Council of Europe, among others. This surgery causes long-term harms and severely limits the medical options intersex children have after their gender identity has manifested.”

The lawsuit is the first of its kind in the United States and charges that social workers and doctors, who authorized and performed the surgery while M.C. was in South Carolina’s custody, violated M.C’s constitutional rights to reproduction, bodily integrity, privacy, and procedural due process.

“The central problem with cosmetic genital surgery on an intersex infant is that no one, including the doctors, knows how the child’s gender identity will emerge,” said Columbia Law School Professor Suzanne B. Goldberg, who directs the Sexuality and Gender Law Clinic and is the brief’s primary author. “But there are other serious problems too—these irreversible surgeries can cause infertility, genital scarring, sexual dysfunction, and depression.”

Read the brief.

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Columbia Law School’s Sexuality and Gender Clinic addresses cutting edge issues in sexuality and gender law through litigation, legislation, public policy analysis, and other forms of advocacy.

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Columbia Law School, founded in 1858, stands at the forefront of legal education and of the law in a global society. Columbia Law School combines traditional strengths in corporate law and financial regulation, international and comparative law, property, contracts, constitutional law, and administrative law with pioneering work in intellectual property, digital technology, tax law and policy, national security, human rights, sexuality and gender, and environmental law

Religious Accommodations Cost More Than Money


Posted on March 26th, 2014 by Cindy Gao

From Public Rights/Private Conscience Director Kara Loewentheil, originally published in Balkinization on March 26th, 2014. 

Yesterday the Supreme Court heard arguments in the consolidated cases of Hobby Lobby and Conestoga Wood. With the publication of the full argument transcript online, it became clear that even the experienced lawyers arguing these cases – along with the Supreme Court Justices themselves – were struggling to understand how to think about the relationship between religious accommodations and third party rights. In this context, that means the impacts that accommodations granted to religious employers would have on their female employees who would otherwise have access to contraception without cost-sharing under the Affordable Care Act’s contraceptive coverage requirement (and indirectly on their partners and children).

This came as no surprise to me. In When Free Exercise Is A Burden: Protecting “Third Parties” In Religious Accommodation Law, a paper I authored that is shortly forthcoming in the Drake Law Review, I argue that neither scholars nor courts have thus far provided a satisfying account of how to balance free exercise rights against the impact of those rights on “third parties.” In the paper I provide a thorough analysis of the existing case law on this issue and propose both a novel framework for balancing such rights as well as insight into how to better utilize the existing constitutional and statutory doctrine toward this end.

In this short post, however, I simply want to draw attention to one particularly overlooked element of the contraceptive coverage requirement that can only be understood in relation to the “third parties” (female employees) in this case. The arguments yesterday focused entirely on the practical benefit of the contraceptive coverage requirement, and analyzed everything – from the compelling interest the government advanced to the effect of already-existing exemptions – in terms of the tangible access or lack of access to contraception for the women affected. But law has more than practical impacts – it has important expressive impacts that are explicitly meant to, and do, shape social norms and priorities. In my paper I argue that the contraceptive coverage requirement has an enormously important expressive element – it signifies a social and political commitment to women’s social and economic equality, and symbolizes an acceptance of social and shared responsibility for gender equality. The importance of contraception to women’s equality has been recognized by the Supreme Court, and is featured prominently in the Government’s briefing on its compelling interest in the law. That equality is impossible to achieve without access to contraception. In that light, allowing religious accommodations without ensuring seamless and no-cost contraceptive access for the employees of objectors would be inflicting a serious expressive and dignitary harm.

Now compare that understanding to this exchange on pages 37-38 of the transcript. It comes in the midst of a dialogue between Clement, arguing for the objecting plaintiffs, and Justice Kagan during yesterday’s argument, in which Clement distinguishes between the effect of race discrimination on a prospective employee and the effect of religious exemptions on women seeking contraception:

Now, each of those has a burden on third parties, but I would respectfully suggest they’re different.  In the case of the employee who’s been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. . . . Here . . . all we’re really talking about is who’s going to pay for a subsidy that the government prefers. This is not about access to the contraception.  It’s about who’s going to pay for the government’s preferred subsidy.

Clement’s description of what’s at stake is as minimal as can be: it’s just who is going to pay for contraception. It’s just a matter of money, with no expressive or dignitary implications. What is fascinating about this set-up is that Clement specifically contrasts this case to a race discrimination case, in which he happily admits that an employee discriminated against on the basis of race would have a recognizable harm apart from not getting the job. What kind of harm could that be? Obviously it’s a dignitary harm, a “unique injury” that exists “even if they can get another job.” Contraception, on the other hand, is positioned as simply a consumer good in the market, with absolutely no greater purpose or significance. (Which is ironic, of course, since part of his argument is that his clients view it as a sin.)

This focus on expressive norms and purposes is not just theory-talk. It has direct implications for the way we understand the details of the doctrinal standards as well. In the second half of the argument the conservative justices hammered General Verrilli, arguing for the Government, on how the Government’s interest in the contraception coverage requirement could be compelling when there were allegedly various other exemptions in the law, including for companies with fewer than 50 employees, religious organizations, and grandfathered plans. Verrilli did his best to defend the exemptions, noting that (1) companies with fewer than 50 employees are exempted from providing all health insurance but must cover contraception if they choose to offer health insurance, (2) religious organizations are exempted if they are houses of worship but are only offered an accommodation that ensures access if they are religiously-affiliated nonprofits, and (3) that the grandfathered plans will decrease over the next several years until very few, if any, remain.

The conservative justices were particularly obsessed with the grandfathered plans, and Verrilli had a bit of a difficult time explaining why the practical impact of leaving millions of women without contraceptive access during the intervening years did not undermine the Government’s compelling interest. Embracing the expressive import of the contraception coverage requirement, however, would have cast the exemptions in an entirely different light. The expressive message of exempting small businesses from health care coverage requirements generally is far different than if contraceptive coverage was singled out from those policies. Similarly, the exception for grandfathered plans reads, expressively-speaking, as an administrative transition matter affecting all preventative health care coverage, along with other of the law’s requirements, not as a judgment about the importance of contraception. The religiously-affiliated organizations, meanwhile, are subject to an accommodation that ensures seamless coverage for women in their employ; it is true that the lack of an adequate enforcement mechanism sends a troubling expressive message about the importance of this right, but the core signal of the accommodation is to affirm the Government’s commitment to contraceptive access, not to undermine it.

In other words, understanding the expressive impact of the law reframes the question of the baseline, helping us understand the compelling interest and narrow tailoring tests in a deeper, more coherent way. Such a perspective also has implications for the First Amendment analysis when it comes to whether a law is neutral or generally applicable, but like the Court I leave those questions for another day.

 5 comments  

From Center for Reproductive Rights Fellow Margaux J. Hall, originally published in Slate on March 24th. 

This week, the Supreme Court hears oral argument in two cases asking whether for-profit business corporations have religious liberty rights. Hobby Lobby, a group of craft stores with 13,000 employees, and Conestoga Wood, a small Mennonite furniture maker, want to be free of the Obamacare requirement that employer-provided health insurance plans need to provide certain forms of birth control. They argue that their religious convictions prohibit them from covering such items. Religious institutions, reproductive-rights advocates, and others have sparred over the conflicting rights claims, but one important part of the conversation has been missing almost completely: Why are American employers deciding the contents of our personal health insurance plans?

It didn’t have to be this way. Yet for decades we have allowed our employers virtually unfettered freedom to make all health coverage decisions—not just those related to contraceptives—on behalf of employees and, in many instances, their family members. Why? Isn’t it time to rethink how we got to this place and whether we should do something about it?

Americans often fail to notice that a striking imbalance exists in health insurance purchasing: Although health insurance belongs to the employee, the employer gets to decide what that insurance will cover and under what terms. While contraceptives are the current lightning rod for controversy between employers and employees, tensions have emerged over the years around a whole range of health services, including treatments for autism spectrum disorder, in vitro fertilization, and bariatric surgery.

Why does health insurance actually belong to the employee? Because the employee pays for it—directly and indirectly. Though both employees and employers generally co-finance insurance premiums (in 2012, employees reportedly paid an average of 18 percent of individual plan premium costs, and 39 percent of family plan premium costs), employees functionally fund 100 percent of premium payments. In other words, employers’ health insurance premium contributions are not philanthropic investments—they are part of an employee’s net compensation package. There is a clear wage-benefit tradeoff at work in the case of employment-based health insurance. Economic research shows that employers make fewer investments in real wage increases when they increase their health insurance premium contributions. Seen this way, employers should not be permitted to spend employees’ remuneration in ways that subvert those employees’ interests.

This is the deeper issue that lurks beneath the contraceptive mandate discussions. No matter how Hobby Lobby is ultimately resolved, we have acceded to an arrangement in which employers will continue to have nearly limitless discretion to make health insurance decisions on behalf of most Americans.

In 2010, 55 percent of Americans received their health insurance through their place of employment or that of a family member. As General Motors executives used to quip, “We are in the health care provision business and make cars on the side.” In certain respects, they were right. Both General Motors and Ford have reported that they spend more on health insurance for their employees than they spend on steel. Similarly, Starbucks CEO Howard Schultz claims that Starbucks spends more on health insurance benefits than it does on coffee beans.

Why have employers emerged as the primary providers of health insurance in the U.S.? Several historic and economic reasons explain how we got here. Employment-based insurance coverage expanded in the early- to mid-1900s as unions increasingly demanded more benefits from employers. World War II–era wage controls played a contributing role as well. These wage controls exempted health benefits and thereby gave employers a convenient way to top up salaries and compete for scarce labor.

A variety of economic incentives also sustained employment-based coverage. Providing insurance at the place of employment presents an attractive way to pool risk and minimize adverse selection. A significant threat insurers confront is that individuals will only purchase health insurance when they are already sick and need to use it.  But this risk is minimized when employees purchase their insurance at the workplace through a pre-designated enrollment process.

Employees also benefit from favorable tax treatment of employment-based health insurance. Under the tax code, health benefits are excluded from employees’ taxable income (they are also deductible for employers as business expenses). This tax exclusion is sizable—it reduces the functional cost of workplace health insurance by an estimated 10 to 35 percent, depending on an employee’s marginal tax rate. It is also one of the single largest federal government expenditures. According to the Congressional Budget Office, the health insurance exclusion reduced federal revenue by $248 billion in 2013, including lost income and payroll taxes.

All of this explains why employers have become big players in the health insurance business. But it fails to explain why employers are allowed to determine the cost, quality, and accessibility of the insurance they purchase for their employees. As a legal matter, under the Employee Retirement Income Security Act (ERISA), employers make these determinations as business decisions. Enacted in 1974, ERISA was designed to protect the interests of those participating in employment benefit plans such as pensions or, in this case, health insurance plans. But while this may have been the intention of the legislation, under ERISA employers maintain discretion to pick and choose health insurance plan contents according to their own business or other preferences, with only minimal restrictions in place. The historic rationale for this was that while employers had strong incentives to offer workplace health insurance (competitor companies were doing it, and there were tax benefits), there was no mandate for them to do so. As a consequence, employers were free to offer any health insurance or no health insurance and, consequently, employees had no right to workplace health insurance.

But Obamacare changed all that. Obamacare’s employer mandate will require large employers to provide coverage or pay a penalty starting in 2015. Employees of large firms now have a reason to expect that they will receive their health insurance at the workplace. When they do so, employers will be purchasing health insurance plans on employees’ behalf and using employees’ remuneration to do so. We have yet to reconcile ERISA with the Affordable Care Act in this respect, and it is important that we do so.

One way to remedy this conflict would be by establishing policy that makes employers into legal fiduciaries—like investment and pension managers and others who safeguard our personal investments. Such fiduciaries are entrusted with duties of care and loyalty to those who benefit from their services. They must act in the sole interest of those they serve, without regard to their own financial, moral, or other preferences. Employers, acting as legal fiduciaries, could invest employees’ remuneration in insurance plans offering a diversified pool of health benefits that reflect employees’ needs. We could require employers to ask about employees’ coverage needs before selecting health insurance plans for the next enrollment year, a practice that is largely nonexistent to date. For example, through an annual confidential survey, employers could capture employees’ health needs, aggregate them, and approximate a best-fit health plan or plans to satisfy employees’ needs.

Such a reconceptualization would be groundbreaking. Under this revised model, employers would act on behalf of employees and in their exclusive interest in buying health insurance. Employees’ needs—economic, moral, or otherwise—would come first.

Obamacare means that employers will remain the dominant providers of health insurance in the U.S. for the foreseeable future. That debate is over. But now is the time to challenge the existing model for health insurance decision-making and institute safeguards to ensure that individuals and families—rather than their employers—can pick the contents of the health insurance they buy. As conversations continue to swirl around the contraceptive mandate and Obamacare more broadly, let’s not forget an important conversation that hasn’t yet taken place—clarifying once and for all the role of employers as our health agents.

Katherine Franke, Director of the Center for Gender and Sexuality Law, Creates Public Rights/Private Conscience Project, a new Think-Tank Designed to Reset the Conflict Between Sex Equality, Reproductive Rights, and Religious Liberty

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

New York, March 24, 2014—Katherine Franke, director of Columbia Law School’s Center for Gender and Sexuality Law, announced today the launch of the Public Rights/Private Conscience project, a new think-tank created to address the increased use of religion-based exemptions from compliance with federal and state laws securing equality and sexual liberty.

The scope of religious exemptions will feature prominently at the U.S. Supreme Court tomorrow, March 25, when owners of the craft store chain Hobby Lobby and furniture manufacturer Conestoga Wood argue that their religious beliefs justify an exemption from the Affordable Care Act’s requirement that employers include contraception coverage in their employee health plans. The cases are Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

 Professor Katherine Franke

With increasing frequency, opponents of same-sex marriage, reproductive rights, and gender equality have sought a safe harbor in religion to justify otherwise illegal employment and business practices. Arizona Governor Jan Brewer recently vetoed a bill that critics argued would allow businesses to discriminate against gays and lesbians if the discrimination were attributed to religious beliefs. Similar bills are making their way through other state legislatures.

“With greater and greater frequency, respecting equality rights is seen as optional while respecting religious liberty is mandatory,” Franke said. “The Public Rights/Private Conscience project will bring the considerable academic resources of Columbia University to bear on rethinking this intractable standoff between religious liberty and other rights.”

Read more about the project in this ProPublica Q&A with Franke.

The Public Rights/Private Conscience project will:

  • map the arguments being made in the religious exemptions context in court cases, academic scholarship, policy papers, and the media;
  • mobilize scholars, lawyers, and advocates in an effort to reframe the debate so that compliance with civil rights norms is seen as compatible with faith-based doctrines;
  • develop model language that can be included in proposed legislation that strikes the constitutionally required balance between religious liberty and other fundamental constitutional rights;
  • develop best practices to address entities or individuals that refuse service on the basis of religion;

 

The project will be directed by Kara Loewentheil, currently a postdoctoral associate-in-law and fellow in the Program for the Study of Reproductive Justice at the Information Society Project at Yale Law School. Loewentheil previously served as a Blackmun Legal Fellow at the Center for Reproductive Rights and as a clerk for the Honorable James L. Dennis on the U.S. Court of Appeals for the Fifth Circuit.

“The project is uniquely positioned to develop new theoretical frameworks for understanding the role and impact of religious exemptions on liberty and equality rights in a modern multi-cultural society,” said Loewentheil, who will be joining Columbia Law School as a research fellow in addition to her role as director of the Public Rights/Private Conscience Project. “Our goal is to promote innovative framings of these questions in policy, advocacy, scholarship, and litigation.”

The Public Rights/Private Conscience Project is funded by grants from the Ford Foundation, which aims to strengthen democratic values, reduce poverty and injustice, promote international cooperation, and advance human achievement; and the Arcus Foundation, a leading global foundation advancing pressing social justice and conservation issues.

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