Monthly Archives: August 2014

The New HHS Regulations Can’t Win A Zero-Sum Game

Image credit:  American EHR Blog

Yesterday the Obama Administration released the long-awaited updates to the regulations that govern the availability of an accommodation for religious objectors to the Affordable Care Act’s contraceptive coverage requirement. They came in two parts:

1. A final interim regulation that allows objecting religiously-affiliated organizations who decline to fill out the original form required for an exemption to instead notify the government in writing that they object and to provide the government the contact information for their insurance company or third-party insurer.This, in effect, is the Wheaton College regulation. After such notification is received HHS will then take on the responsibility of contacting  that insurance company or third-party insurer to inform them that they must provide contraceptive coverage to the eligible employees at no cost to the employer in question. This regulation is effective immediately, but comments may be submitted for 60 days, after which a final regulation will be issued (which may or may not end up differing from the interim final regulation).

2. A proposed regulation to govern the process for closely-held corporations or non-corporate-form businesses to seek an accommodation from the contraceptive coverage requirement. This is the Hobby Lobby regulation. Under the regulation, closely-held for-profit businesses that object would have access to the same accommodation as non-profit organizations (i.e., the insurance company or third-party insurer must provide the coverage at no cost to the eligible employees or the company). The regulation is not in effect yet, and the government is actively seeking comments as to a number of elements, including how the regulations should define a closely-held corporation, and how the administering departments should evaluate the existence and scope of a religious objection (if at all). Comments may be submitted for 60 days, after which the government will issue a final regulation.

If you’re interested in the details of how this will all work, logistically, Marty Lederman has written up a nice concise explanation here; no reason to reinvent the wheel on that score. What I want to draw attention to in this post is the fact that none of these accommodations will satisfy the objectors who seem to believe that any type of notification to the government makes them impermissibly complicit in what they believe to be a sin. This may well turn out to be some of the for-profit businesses as well as some of the non-profit organizations. As I explained when the order was issued, this was always a problem with the logic of the Wheaton College order, and nothing in these accommodations will solve that problem. Instead, at least some of the plaintiffs will continue to maintain their suits on the grounds that nothing apart from a full exemption will satisfy their religious obligations, and the courts will likely end up drawing the line somewhere, which makes the entire Wheaton College order and all this rigamarole seem fairly silly. If courts are going to have to end up telling these plaintiffs that they have to notify the government in some way even if they believe that violates their religious beliefs, then it’s hard to understand why the Supreme Court shouldn’t have just required them to fill out the original form and be done with it. The alternative, that courts will eventually grant blanket exemptions to some of these plaintiffs, is an unacceptable outcome given the great harm that such an exemption would impose on the women covered by the insurance plans at issue.

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

You Can Call It “Grave Moral Evil”, But It’s Still Critical Health Care

Originally posted on the Gender & Sexuality Law Blog on August 14th, 2014. 

Image Credit: Getty
Image Credit: Getty

The words “religious freedom” used to bring to my mind the image of Samah, a girl in Colorado who was denied the right to play soccer while wearing her hijab until her high school teammates all wore them in solidarity to the next game. I used to think of the Christians in Egypt who formed a circle around their praying Muslim neighbors to keep them safe from the surrounding protests in the streets. I thought of individuals asserting their right to religious exercise, of people coming together to advocate for the right to worship free from discrimination. Now, I think of a hypocritical discriminatory craft store and get a very different picture in my head. I imagine the Supreme Court in an episode of Oprah’s Favorite Things, Justice Alito on stage facing Hobby Lobby executives and Wheaton College administrators: “And you get an accommodation! And you get an accommodation!” Except in this episode the women are furious, some are facing unwanted pregnancies, and the only gift under their chairs is the Bible.

When promulgating new regulations implementing the Affordable Care Act, the Department of Health & Human Services (HHS) included an accommodation form for religiously affiliated institutions and non-profit organizations, to allow them to refrain from paying for coverage of contraceptives if they had a religious objection to doing so. The regulations required the objecting organization to send a designated form to HHS and a copy to their third-party insurer, which was designed to let the insurer know that it must supply contraceptive coverage separately to plan members at no cost to the organization or the insured individuals. In the Hobby Lobby Supreme Court case, Justice Alito, writing for the majority, held that the non-profit accommodation had to be extended to closely held for-profit corporations. The extension of an already broad religious exemption delivered hope to the plaintiffs of many similar cases suggesting that they too might receive special treatment for their beliefs.

One problem with this decision is that exempting Christian organizations doesn’t just affect Christian people. Unlike houses of worship, religiously affiliated non-profits often employ workers who do not share the religious beliefs of their employers. Some hospital systems are religiously affiliated non-profit organizations, for instance, and may employ thousands of people with diverse beliefs. Another problem is that even organizations allowed to use the exemption have sued, saying that even the exemption violates their rights. Shortly after the Hobby Lobby decision came down, the Supreme Court issued a temporary order in favor of Wheaton College, a Christian school whose administrators object to providing emergency contraceptive coverage to employees and students. Wheaton claimed that even the paperwork for the accommodation was a burden on its religious exercise because “authorizing its [third-party administrator] to provide these drugs in [its] place makes it complicit in grave moral evil.”[1] The Court’s injunction allows Wheaton College to refuse to file the form with HHS and its insurance company and allows it to simply inform HHS in some written form of its objection, without having any obligation to inform its insurance company. This decision requires HHS to restructure how they manage accommodations so that they can handle more incoming requests.

The danger that women will slip through the cracks when it comes to a college or university affects not only employees, but also students who may have fewer resources for protecting their reproductive health. If a student is looking to purchase emergency contraception, shouldn’t he or she be able to do so without having to go through confusing roundabout coverage? Studies have shown that even moderate copays for health services can result in an individual not obtaining the care they need.

Where will the accommodations end? Laws that allow the very thing they are prohibiting cannot be effective, and they encourage discrimination and endanger citizens. As for the Supreme Court, the majority of the men on the bench seem to hold the claims of religious employers in high esteem, addressing the needs of the Hobby Lobby employees in just a few sentences[2]. The decision to grant Wheaton’s injunction demonstrates that the Court is venturing further into the minefield Justice Ginsburg warned of in her dissent from the Hobby Lobby decision,[3] and further and further away from the ideals for which our courts and country should stand.

****

[1] Burwell v. Wheaton College, page 10 http://www.supremecourt.gov/opinions/13pdf/13a1284_ap6c.pdf 

[2] Burwell v. Hobby Lobby, page 45 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf 

[3] Burwell v. Hobby Lobby, page 94 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf   

Sasha Conley is the Public Rights / Private Conscience Project Summer Junior Fellow and a rising junior at Hampshire College.

Free Exercise & the Rapture: Can Parents Stop Educating Their Children Based on Religious Beliefs?

Originally posted on the Gender & Sexuality Law Blog on August 12th, 2014.

Image Credit: Skreened
Image Credit: Skreened

Do you need to know algebra in Heaven? The plaintiffs in a recent state court case in Texas think not. The plaintiffs, Michael and Laura McIntyre, removed their nine children from the public school system in 2004 order to homeschool them, which is perfectly legal in Texas (and many other states) providing that you actually do the “school” part of “homeschool,” not just the “home.” (Five of the children are still minors and at issue in the lawsuit.) But then they stopped homeschooling them too, because, it is alleged, they are convinced that (1) the Rapture is coming, (2) their children are sure to be raptured, and (3) apparently their children will not need any earthly education in Heaven. When the State of Texas filed truancy complaints against the McIntyres they sued for declarative and injunctive relief under the Texas Constitution and the Texas Religious Freedom Restoration Act, as well as the US Constitution and other Texas statutes. [1]

The McIntyres, being no fools, hired lawyers who had in fact gone to a lot of school, and who argued that Wisconsin v. Yoder gave the family the right not to educate their children. In Yoder, members of an Amish community challenged a Wisconsin state law that required their children to attend school until the age of 16, arguing that their free exercise rights should include the right to pull their children out of school at 14. The Supreme Court found they had a constitutional right to skip those last two years of compulsory education, focusing on the particular nature of the Amish community (insular, upstanding, self-sufficient) and the fact that almost all Amish youth, according to the Court, would be remaining in the Amish community and would need vocational skills more than traditional education.

The Texas Eighth District Court of Appeals ruled against the McIntyres, rightly holding that the US Constitution has never guaranteed an absolute right to control over a child’s upbringing or education, and that the facts in Yoder were so specific and context-dependent as to not be generalizable to other communities or fact patterns. But I want to briefly point out another problem with the claim in this case – which was an overlooked problem with Yoder itself. One problem with the outcome in Yoder that has not received sufficient attention is that it had the potential to impose serious burdens on Amish adolescents who might *want* more education and might *want* to leave the community, but who would be ill-prepared to do so if they had no legal right to attend school past the eighth grade. In my work on third-party harms from religious exemptions I have called the parties affected “existing rights-holders” and cautioned that religious exemptions can impose serious consequences on them. The Amish teens were such existing rights-holders – and so was at least one of the McIntyre children, Tori, who ran away from home in order to attend high school.  As I’ve argued elsewhere, a more robust way of understanding the interests of existing rights-holders when analyzing requests for religious exemptions (whether statutory or constitutional) would give us a more comprehensive picture of what’s at stake in these debates.

****

[1] This case was slightly unusual because generally a court hearing a federal constitutional challenge as well as a state or federal RFRA challenge will reach the RFRA question first, and that will usually be dispositive, because RFRA provides more protection than the federal constitution for free exercise, so if you win under RFRA there is no need to reach the constitutional question and if you lose under RFRA it is very unlikely you would have a claim under the First Amendment. In this case however, the plaintiffs had failed to satisfy an exhaustion requirement for their state RFRA claim, and so the Court had to decide their First Amendment claim.

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

When Reality Becomes Satire: Anti-Contraception Nurse Sues Family Planning Clinic For Not Hiring Her

Originally posted on the Gender & Sexuality Law Blog on July 24, 2014.

And now for an exercise in absurdity: a nurse who refuses to prescribe contraception is suing a family planning clinic because it refused to hire her. It refused to hire her for a very simple reason, which probably seems obvious: It’s a family planning clinic, and she refused to perform family planning services. Rather than take that as a fairly reasonable basis for rejection, and conclude that perhaps she would be happier and of more use in a different context (a crisis pregnancy center, perhaps), the nurse decided to sue the clinic, claiming that it discriminated against her on the basis of her religion. As the Huffington Post reported:

Sara Hellwege, a nurse in Tampa, Fla., applied for a job at Tampa Family Health Centers in May 2014. The organization receives federal Title X family planning funds, which means that it must provide women contraception and other family planning services. But Hellwege is a member of the American Association of Pro-Life Obstetricians and Gynecologists, and told health center staff that she would not be willing to prescribe birth control if she were hired for the job.

It’s almost hard to take this seriously, since it reads like an article from The Onion. But it’s not satire, it’s real life. And it’s the entirely predictable consequence of the isolation and stigmatization of contraception and abortion. Over the past several decades abortion has been singled out from other medical services and tainted with social stigma and controversy, even though it’s a basic health care service that approximately one in three American women will use by the age of 45. And now contraception is in danger of the same fate – the proliferation of religious objections to contraception, like those that featured in the Hobby Lobby litigation, conflates contraception with abortion and attempts to transform contraception from a health care necessity used by 99 percent of sexually active American women (aged 15-44) at some point in their lives to a socially controversial morally stigmatized landmine in the so-called “culture wars.” That’s no conspiracy theory – it’s the basis of the argument in the lawsuit, in fact: the plaintiff argues that contraception causes abortion, and that she is legally protected from discrimination on the basis of her refusal to perform abortions.

This nurse should lose her lawsuit, and not only because nurses should understand basic reproductive biology, especially if they want to work in reproductive health. If there was ever a good reason for declining to hire someone, it’s that the person refuses to perform the job for which they want to be hired. It’s particularly ironic that some houses of worship and religiously-affiliated non-profit organizations want an exemption to anti-discrimination laws allowing them to discriminate in favor of hiring co-religionists in certain settings. If the Catholic Church should be free to hire only Catholics, shouldn’t a family planning clinic be free to hire only people who actually believe in using – and will agree to dispense – family planning? Here’s hoping the court hearing her case has a sense of the absurd.

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

Over 50 Legal Scholars Urge President Obama to Deny Religious Exemption Clause in LGBT Executive Order

Originally posted on the Gender & Sexuality Law Blog on July 14th, 2014.

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 Makes: The Hobby Lobby Fallout Arrives

Originally posted on the Gender & Sexuality Law Blog on July 3rd, 2014.

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 freedomLet 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.

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. 

In the Wake of the Hobby Lobby Ruling, What’s Next?

Originally published in Feministing on July 1st, 2014, cross-posted on the Gender & Sexuality Law Blog  on July 1st, 2014.

10461633_10152520561634321_5422608368923610435_n-e1404236390822

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.

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 Discrimination and Racism: It’s Not Old News

Originally posted on the Gender & Sexuality Law Blog on June 4th, 2014.

Image Source: http://americanhistory.mrdonn.org
Image Source: http://americanhistory.mrdonn.org

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

From Center for Gender and Sexuality Law Director Katherine Franke, originally published in States of Devotion on April 21st, 2014. Cross-posted on the Gender & Sexuality Law Blog on June 2nd, 2014.

Image Credit: Wyoming Jackrabbit
Image Credit: Wyoming Jackrabbit

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).

What’s the Harm?: Courts Are Missing the Point in the Contraceptive Coverage Litigation

Originally posted on the Gender & Sexuality Law Blog on May 27th, 2014.

Image Credit: Andrew Schwab
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.