More than 50 legal scholars today strongly urged President Obama to resist calls for an overly broad religious exemption in a proposed executive order prohibiting sexual orientation and/or gender identity discrimination by federal contractors.

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

In a letter signed by 54 legal scholars from around the country, Columbia Law School Professor Katherine Franke, Public Rights/Private Conscience Project Director Kara Loewentheil, and Brooklyn Law School Professor Nelson Tebbe argue that the broad exemption urged by some religious leaders and several law professors is not required by the First Amendment’s Free Exercise Clause, the Religious Freedom Restoration Act (RFRA), or accommodations of religious liberty in other federal non-discrimination laws, including Title VII.

“The Supreme Court’s recent opinion in Hobby Lobby and order in Wheaton College do not compel in any way the inclusion of religious exemptions language in an executive order prohibiting discrimination against LGBT employees of federal contractors,” said Franke. “Including an exemption for religious discrimination in an executive order securing work-place rights for LGBT people sends a message that the federal government has a more ambivalent commitment to sexual orientation and gender-identity based discrimination as compared with other forms of workplace equality.”

Loewentheil said the letter “reflects an emerging consensus among legal scholars that a proper balance between religious liberty and equal rights can be struck without creating carve-outs for religion in new laws protecting LGBT or reproductive rights.”

“We are delighted that many prominent scholars in the legal academy signed this letter,” Loewentheil said. “The views of these scholars provide responsible counsel to the White House as it considers the wording of an important new executive order securing LGBT and gender identity non-discrimination rules for employers who receive public funding.”

Read the letter.


What A Difference Three Days Make: The Hobby Lobby Fallout Arrives

Posted on July 3rd, 2014 by Kara Loewentheil

fallout image

The Supreme Court is supposed to be the final word on our legal questions, but apparently it reserves the right to change its mind at a moment’s notice. When the Supreme Court issued its opinion in Burwell v. Hobby Lobby Stores on Monday June 30th, holding that the Religious Freedom Restoration Act required the government to allow for-profit businesses with religious objections to contraceptives to opt out of complying with the Affordable Care Act’s contraceptive coverage requirement, the majority opinion stressed at length the idea that the law was not narrowly tailored because the government could have offered for-profit businesses the same accommodation available to non-profit religiously-affiliated organizations. Under the regulations implementing the ACA, religiously-affiliated non-profit organizations are allowed to certify that they object to providing insurance coverage for contraception. They send that form to the government and to their insurance company, at which point their insurance company is required to pay for the coverage out of its own funds. The majority opinion relied on the existence of this program as proof that the government had a better option available to achieve its goal of universal contraceptive coverage. As Justice Alito wrote, that accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests equally well.”[1]

One might have thought this meant that the accommodation was, in fact, a legally acceptable system that would withstand a challenge under RFRA (given the lack of enforcement or monitoring in the regulation, it’s far from a morally acceptable system anyway). But only three days later the Supreme Court has issued an order temporarily enjoining the government from enforcing the requirement that a non-profit religiously-affiliated organization certify that it objects to coverage. There are almost 80 cases pending in the lower federal courts brought by non-profit organizations that claim that even signing the certification form is a substantial burden on their free exercise, because they believe that signing the form “triggers” the insurance company to provide the contraceptives and thereby makes them – the nonprofit organization – complicit. And not just complicit, but so complicit it violates their religious freedom. Let me just be clear again, we’re talking about signing a form, the entire purpose of which is to excuse the organization from being required to pay for contraceptive coverage. The majority held that these organizations need not sign the form nor send the required notifications. Instead the majority arbitrarily rewrote the applicable regulations, making it the government’s responsibility to make sure that women receive seamless contraceptive coverage once they have received some kind of undefined written notice that an organization objects. (One presumes that a scrawled note on a cocktail napkin will suffice).

So why should we care? After all, what does it matter whether the organizations have to sign a form or send some other kind of written notice? It matters for a few reasons. First, it matters for the actual women employed by these religiously-affiliated organizations, which includes Catholic hospitals, religiously-affiliated universities, and other large complicated institutions that employ thousands and thousands of women. The accommodation already suffered from a lack of monitoring and enforcement mechanism, and now objecting institutions need not even sign a standard form, and the government is supposed to somehow ensure that all these women don’t fall through the cracks, if it chooses to do so – the order doesn’t require it to do so, and neither do the current regulations. We can hope for the best, but should be prepared for the worst on that front.

The dangers of this order go far beyond those women though. Misguided as the opinion in Hobby Lobby was – inaccurate and poorly-reasoned though it might have been – at least the objectors were arguably requesting relief from an actual legal requirement.[2] The objectors in these non-profit cases are already being given an accommodation. The idea that signing a form that allows one to get an exemption can itself be a substantial burden on one’s free exercise boggles the mind. It makes a mockery of the substantial burden standard – forget the word “substantial,” even of the word “burden.” It effectively deprives the test under RFRA of any real meaning, and hollows out the court’s evaluative role in adjudicating these claims. If signing a form that gives you access to an exemption is a substantial burden, then anything is a substantial burden, and there’s absolutely no check on what religious objectors can refuse to do.

The only silver lining is that these cases – and this result – make clear what we have long suspected: religious objectors to the contraceptive coverage requirement (and other equality measures) aren’t looking for a reasonable compromise. They are looking to reject secular governmental authority altogether in favor of obedience to a religious law, regardless of the fact that the vast majority of the actual individuals affected do not share their religion or their beliefs. It’s the tyranny of the minority, and it looks like it may be here to stay.


[1] Burwell v. Hobby Lobby Stores, slip. op. at 34 (available at http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf)

[2] I say arguably because there was a strong argument in the case, first proposed by Marty Lederman but not accepted by the majority, that in fact there was no legal requirement to provide insurance coverage for contraception – rather there was a choice to provide comprehensive coverage or to provide no coverage and pay a tax to subsidize insurance on public exchanges instead. See e.g. Marty Lederman, http://balkin.blogspot.com/2013/12/hobby-lobby-part-iiitheres-no-employer.html.

In the Wake of the Hobby Lobby Ruling, What Happens Next?

Posted on July 1st, 2014 by Cindy Gao

From Public Rights/Private Conscience Project Director Kara Loewentheil, originally published in Feministing on July 1st.  















Yesterday the Supreme Court ruled that some for-profit businesses do not have to comply with the Affordable Care Act’s requirement ensuring contraceptive coverage at no cost to the insured. The plaintiffs in these cases – and in almost 50 other cases filed making similar claims – claimed that providing coverage for various forms of birth control violates their rights under the Religious Freedom Restoration Act (“RFRA”), a federal statute that provides additional protections for religious believers beyond the minimum required by the First Amendment.

The Court’s decision held that (1) closely-held corporations (meaning that most of the shares are privately held by a small group of owners, and stock is not usually publicly traded) have religious free exercise rights under RFRA, (2) having to pay for contraceptive coverage would be a “substantial burden” on the plaintiffs (even though they could just choose to pay a tax to subsidize public insurance exchanges on which their employees could purchase comprehensive insurance instead), and (3) even if the government interest in providing comprehensive contraceptive coverage was “compelling,” the law was not “narrowly tailored” – meaning that the government could have achieved the goal in a different way that would not have violated the plaintiffs’ religious rights.

There’s plenty to argue with in that analysis – and Justice Ginsburg wrote a masterful dissentdoing just that – but what’s done is done. So what comes next? 

There are three big unknowns.

First, we don’t know how broadly this opinion reaches, or how slippery the slope downhill could be. The Court repeated several times in the opinion that it was only deciding the particular question here (contraceptive coverage, closely-held corporations, etc.) but there aren’t any principled reasons in the opinion to cabin it to that question. Why wouldn’t the same principles apply to a company that didn’t want to cover, say, blood transfusions (to which Jehovah’s Witnesses object) or psychiatric medication (to which Scientologists object) or even vaccines? And it’s not just insurance coverage at issue – it’s sex discrimination, race discrimination, sexual orientation, and gender identity discrimination, among other issues. What about a company whose owners believe men should be paid more than women because the bible teaches that men are the heads of the household? (True story, those cases have been brought before). Or a company whose owners believe that LGBT individuals shouldn’t marry or reproduce? (We’re all too familiar with that refrain). Or even a company who believes that African-Americans and Jews should not work with Caucasian Christians? (As many companies did in the Jim Crow era). Some of these scenarios may seem far-fetched, but there are no safeguards in the court’s opinion to prevent this expansive reading of RFRA from being used as a backdoor wedge to start undermining a lot of the civil rights protections we now take for granted.

Second, we can only guess how this ruling will affect the legal and social status of contraception – and the guessing doesn’t look good. We’re all too familiar with “abortion exceptionalism” – the way that abortion is considered “different” from other forms of health care, from other categories of rights, and from other indicators of equality. These cases are part of a concerted legal and social effort by anti-choice advocates to blur the boundaries between contraception and abortion and to taint contraception with the social controversy and stigma of abortion. In these opinions, contraception is isolated. It’s singled out from all other forms of medical care, and it’s singled out from other equality rights – and that makes it vulnerable to legal and social attacks on access from all sides. And that’s nothing to look forward to.

And finally, we don’t know what will happen next in the courts – or what the government will do in response to the decision. There are almost 50 cases in the lower federal courts filed by similar corporations that, after this decision, are probably now all going to be decided in favor of the religious objectors. Then there are over 80 cases filed by religiously-affiliated nonprofits that don’t even want to certify that they object because they say just signing the form violates their free exercise rights. And outside the courts, the Administration and/or Congress will have to decide whether and how to respond. The Court’s opinion was very clear that the accommodation that the Administration has offered to non-profit religiously-affiliated organizations (which allows them to certify that they object to providing coverage for birth control and then requires their insurance company to pay for it instead) would have been a “better” alternative because it would have maintained free access to contraceptives while not burdening the religious exercise of the business owners who sued. So the Department of Health and Human Services might be able to issue regulations making that change, or the Administration might be able to come up with some other way of ensuring coverage through executive action, or Congress might be able to amend the Affordable Care Act or pass stand-alone legislation providing national contraceptive coverage. There are a lot of options, but we don’t know yet which ones will transpire.

And if there’s no fix, then all those female employees of the objecting businesses will have to pay for their own birth control or will have to purchase private insurance on an insurance exchange that actually provides comprehensive coverage. As far as the majority opinion of the Supreme Court is concerned, that’s just the price of doing business.


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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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.

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Sexuality and Gender Law Clinic Files Amicus Briefs in 6th U.S. Circuit Court of Appeals Arguing Laws Barring Gay Couples from Marrying and Denying Recognition of Same-Sex Marriages Violate U.S. Constitution’s Due Process Guarantee

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

New York, June 17, 2014—Four states—Kentucky, Michigan, Ohio, and Tennessee—violate the U.S. Constitution’s due process guarantee by interfering with individuals’ ability to choose their spouse and by refusing to recognize same-sex couples’ marriages, Columbia Law School’s Sexuality and Gender Law Clinic argues in amicus briefs filed yesterday with the U.S. Court of Appeals for the Sixth Circuit.

The clinic’s briefs–one for each state–explain that the due process guarantee has long been understood to protect against government interference in fundamental personal decision making, including the choice of one’s spouse. In these states, the marriage laws generally put few limits on that freedom–except for the refusal to allow same-sex couples to marry and to recognize their marriages.

In each of the four cases, gay and lesbian couples had sought to marry or to have their marriages recognized by their home state. They all prevailed in the district courts in their states, and the Sixth Circuit is now scheduled to hear appeals from each state.

Columbia Law School Professor Suzanne B. Goldberg, who directs the Sexuality and Gender Law Clinic and is a leading expert on civil rights and constitutional law, authored the briefs.

“Marriage laws in these states deny a basic right that different-sex couples enjoy: the freedom to choose their own spouse and to have the state recognize that choice no matter where the marriage takes place,” Goldberg said. “Against the backdrop of the U.S. Supreme Court’s strong protection for the freedom to marry, these states’ laws are strikingly unconstitutional.”

Columbia Law School students Julia Maddera ’16 and Hunter Vanaria ’16 assisted with research for the brief.

Oral argument in the cases is scheduled for August 6. Read the KentuckyMichiganOhio, andTennessee briefs.

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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.

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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

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
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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).


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

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).



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