Monthly Archives: October 2014

What If Courts Considered Sincerity Of “Religious Freedom” Litigants?

Originally posted at Religion Dispatches on October 29, 2014.

By Kara Loewentheil


If I didn’t know better I would think that an establishment called The Hitching Post was more likely to be an old-time saloon than the newest front in the religious exemption wars. But that just goes to show I don’t appreciate a good pun when I see one, because The Hitching Post is, in fact, the name of a for-profit wedding chapel in Coeur d’Alene, Idaho, that has found itself in the midst of the heated debate over religious exemptions and same-sex marriage.

Or it might be more accurate to say it’s been shoved into the middle of that debate by the Alliance Defending Freedom, the conservative impact litigation organization, which filed suit on behalf of the Knapps (owners of the Hitching Post) soon after the Ninth Circuit overturned Idaho’s marriage ban, even though no enforcement action against the Knapps had been taken (or even threatened).

Much has already been written about the Hitching Post’s lawsuit, and in particular the bizarre white-washing—or maybe Christian-washing—that is evident when one compares screen grabs of the company’s website only a few weeks ago with its current incarnation. It’s obvious why this troubles us on a practical, human level—it suggests that the apparently newfound commitment to officiating only cross-sex Christian marriages is really just a convenient mask for homophobia, and that the Knapps only discovered their newfound devotion when gay marriage became the law of their land.

But there’s another reason it should trouble us—at least those of us with an interest in how the law deals with these questions—regardless of whether or not the Hitching Post gets its exemption or not. And that’s because the doctrine as it currently exists doesn’t have a good way of taking account of these kinds of facts. There was a similar pattern in Hobby Lobby, where it became apparent that (1) Hobby Lobby had covered contraception in its health plan until the ACA was passed requiring it to do so, which was the first point at which anyone apparently thought to check on whether they covered it, and (2) even after the lawsuit it continues to invest money in its 401k plans in the companies that manufacture the types of contraception to which it religiously objects.

None of this made it into the opinion though, because as current doctrine stands, courts are loath to consider the “sincerity” of a plaintiff’s religious beliefs. Whether or not we should question a plaintiff’s sincerity qua sincerity is a question I’ll leave for another time But I think these kinds of cases get at a different but related issue—that maybe when we talk about sincerity we’re not talking so much about your belief at a given moment, but about whether you’re acting the way we think someone with your beliefs should act.

In other words, are you acting in a way that is consistent with your beliefs as you yourself have expressed them? Courts may be unable to plumb the depths of a man’s soul, but they can certainly compare his (or her) past behavior to his (or her) current statements, and see if there is any contradiction between them. In other legal contexts courts have to compare actions to statements and interpret intentions as a routine matter.

I’m not necessarily saying that’s the approach the doctrine should take—this is a question I’m currently thinking and starting to write about in my own academic work, and I don’t have a clear answer yet. But I think that sense of discord—between what a plaintiff says he or she believes and what his or her actions suggest—gets at what many people find so infuriating about this kind of contrast. And sometimes that indignation is a good indication that the law is missing an important part of the story.

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

The Problem With The Notion Of “Closely-Held Corporations” In Hobby Lobby

Originally posted at Religion Dispatches on October 24, 2014.

By Kara Loewentheil

There’s been a lot of talk about the religious rights of “closely-held corporations” since the Supreme Court’s opinion in Hobby Lobby back in June. So you might be surprised to learn, as I did, that “closely-held corporation” is not actually a thing. Who knew?

It certainly sounds like a real thing, and the Supreme Court seemed to think it was a real thing. But in the course of drafting and submitting several sets of comments on behalf of my day job at PRPCP(and the 60+ professors who signed on with us) on the Administration’s proposed definition of the for-profit entities who can seek an accommodation to avoid complying with the ACA’s contraceptive coverage requirement, I discovered that “closely-held corporation” is not a universally-understood term in corporate law. Or even a nationally-understood term. There are statutes in some states called “close corporation” statutes, but fewer than half the states have them, and even in the states that do have them, the requirements and limitations differ.

That may sound like a corporate law issue, not a religious rights issue, but it gets to one of the complications of free exercise rights. Some areas of law operate vertically, let’s say, since they’re mostly self-referential and one can acquire expertise in them without much reference to other areas of law. But religious rights work horizontally, as they come into interaction, and conflict, with many other categories of law. And it’s impossible to be expert in all types of law, even for the Supreme Court (although arguably one doesn’t need to be that much of an expert to realize this particular close corporation point).

In this case, that means it doesn’t actually make sense to say that the type of for-profit entity that has standing to raise RFRA claims is a “closely-held corporation,” because that’s not actually a standard type of entity in corporate law. Instead, as our comments argued, it makes more sense to ask what types of for-profit entities the Supreme Court was trying to protect in its decision.

The Court’s theory of corporate rights in Hobby Lobby was associational–the individuals who come together to make up a for-profit entity have individual religious rights, and so the entity is simply the vehicle through which they act on them. As the Court explained:

It is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. . . . protecting the free-exercise rights of corporations like Hobby Lobby . . . protects the religious liberty of the humans who own and control those companies.

Given that, it makes sense only to recognize religious rights for a for-profit entity when the entity’s owners are unanimous in their beliefs and their desired action. If half of the owners of a company believe their religion requires them to seek an exemption and the other half of the owners believe their religion requires them to help women access health care including contraception, it would make no sense to say that a corporation was “protect[ing] the religious liberty of the humans who own it,” because whichever action it took (seeking an exemption or not seeking an exemption), half the owners would not only not be represented but would actively be thwarted in their own religious exercise.

That is why our comments, joined by 40+ corporate law experts, urged the Department to limit the exemption to privately-held for-profit entities of a limited size that could produce proof of a religious mission in their governance documents and could produce documentation of an annual owner agreement to seek an exemption. Now we wait and see what the Department will do, and how they will choose to interpret the opinion’s imprecise terms.

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

PRPCP Leads 60+ Law Professors In Submitting Comments On ACA Contraception Accommodation


Image c/o TV by the Numbers

By Kara Loewentheil

Back in August the Obama Administration responded to the Supreme Court’s opinion in Hobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believed notifying their insurance company or third-party administrator (TPA) of their objection was also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS would work together to notify the insurance company or TPA. (I’ve written elsewhere about why this is, not to put too fine a point on it, a somewhat pointless exercise). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.

These regulations were open for public comments, and PRPCP drafted comments on both rules that were signed by more than  60 prominent legal academics. Along with more than 40 corporate law scholars, we argued that “[t]he Supreme Court’s approach to corporate religious rights in Hobby Lobby was associational in nature: for-profit entities have religious rights because they are a collection of individuals with religious rights. In that sense the entity is merely the vehicle through which a group of individuals with religious rights exercises those rights in a collective manner.” Given that, we urged the Department to only allow for-profit entities that (1) were privately-held and limited to a certain size, (2) could produce evidence of their religious operating mission, and (3)produced evidence of a unanimous owner agreement to seek the accommodation annually.

In addition, along with more than 20 important scholars of law and religion, we submitted comments urging both HHS and DOL to create stringent monitoring and enforcement standards in order to avoid Establishment Clause violations. As we explained in our comments, “[s]tatutes like RFRA may exempt religious actors beyond what is constitutionally required, but only if they do not offend superior rights found in the Constitution. The Establishment Clause can be violated when . . . accommodations shift the burden of a religious observance from those who practice the religion to those who do not.” Because the accommodation process has the potential to impose burdens on affected employees – like delays or gaps in coverage – it is essential that the accommodation process truly be seamless. Otherwise there will only be more lawsuits ahead.

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



Scalia On Muslim Beard Case: “Religious Beliefs Aren’t Reasonable”

Originally posted at Religion Dispatches on October 10, 2014.

On Tuesday the Supreme Court heard arguments in Holt v. Hobbs, a case about whether a prisoner in Arkansas has the right to grow a ½-inch beard for religious reasons. The media commentary has generally focused, for good reason, on the absurdity of the government’s assertion that a ½-inch beard could be used to hide contraband.

But one of the more interesting threads of the oral argument was Justice Scalia’s assertion that religious directives are “categorical” and not open to a reasonableness analysis. In the first few moments of argument, as plaintiff’s counsel was extolling his client’s reasonableness in asking for just a ½-inch beard to fulfill his religious obligations while satisfying the prison’s security concerns, Justice Scalia opined: “Well religious beliefs aren’t reasonable. I mean, religious beliefs are categorical. You know, it’s God tells you. It’s not a matter of being reasonable. God be reasonable? He’s supposed to have a full beard.”

For many, as Scalia recognizes, religious beliefs are categorical. That’s what makes it so difficult to draw a policy line determining at what point we are no longer willing to compromise with a belief that is categorical in nature. (And, by the way, what made it so ludicrous for the Court to rule in Hobby Lobby that the government could extend the non-profit accommodation process to for-profit companies without acknowledging the fact that many for-profit and non-profit companies would continue to object to any accommodation process at all on the grounds that complicity is a categorical sin).

But oddly in this oral argument Scalia seems to delight in this inability to reason with religious dictates. It’s as though it is supposed to make us less sympathetic towards the plaintiff that he is willing to compromise his religious beliefs in order to work with the state on meeting its security needs. The implication is that his very willingness to help reach a satisfactory accommodation is a sign that his dedication to his religion is insufficient to justify an accommodation. Is the idea that only the most inflexible and rigid should be deemed religiously committed enough to receive an accommodation–even though they are those least likely to accept being accommodated rather than absolutely exempted?

In other words, if we require purity of religious devotion we will increase the incentives for claimants to take extreme positions and make compromise accommodations less and less appealing, leaving us more polarized and fractured than ever. That’s a peculiar–and troubling–outcome if the purpose of religious accommodation is supposed to be to allow people of diverse beliefs to live harmoniously together.

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

“No” To Gay Means “No” To AA: Why The “Sandbox” Argument Is Misleading

In a story that hasn’t yet been widely picked up in the national media, a Baptist Church in Louisiana has evicted an AA group from its meeting space for fear that because it allows AA to meet there, it could, in some speculative future litigation, be deemed a public accommodation and required to host gay and lesbian commitment ceremonies.

This is going to be catnip for advocates and scholars who make what I call the “sandbox” argument: the argument that we need to allow religious refusals or else houses of worship and religiously-affiliated non-profit organizations (or for-profit businesses for that matter) will take their toys and go home.

The classic example used to illustrate the sandbox effect is Catholic Charities, which stopped providing adoptions in Massachusetts after a law was passed requiring adoption agencies to serve gay and lesbian families. The lesson here is supposed to be that a religious exemption would have allowed Catholic Charities to continue operating and saved the children, in some general pathos-inducing way. This new AA story fits right into that neat little narrative.

The problem is that the story is basically false. Catholic Charities, for example, didn’t close because it was not willing to place children with gay and lesbian couples–in fact, it already had been placing children with gay and lesbian couples. The problem was that once Massachusetts started to consider a law requiring that it do so, the church hierarchy started paying attention, realized that Catholic Charities had already been doing it, and then closed the branch down rather than allow them to continue doing what they had already been doing anyway.

So yes, in some sense Catholic Charities ceased operating because of the law, but not in the way the story implies–not in a way that actually tells us all that much about the impact of religious exemptions.

But the myth of Catholic Charities tells us a lot. The story has been deployed by religious conservatives to advance the idea that broad exemptions hurt the public, an important counterweight to the emphasis on the ways that religious exemptions can harm third parties that have proliferated in the wake of Elane Photography and Hobby Lobby. The truth matters less than the story. And the point of the story is to widen the circle of “victims” impacted by religious exemptions.

Make no mistake, this isn’t just the hasty action of a local Louisiana church; according to the local media report, the church got the idea from a national Baptist magazine article advising churches about how to “safeguard against homosexual marriages.” Apparently the advice was to not let anyone who isn’t a member of the church use the facilities, lest the church be required to let everyone use them.

The banishment of the AA group is the next step in the harm narrative–the widening of the circle of collateral damage caused by any resistance to religious exemptions on demand. If we started with “not allowing exemptions hurts religious believers,” and then moved to “not allowing exemptions hurts people who receive religiously sponsored services when specific services are regulated by law,” we’re now at “not allowing exemptions in one context hurts people who get any kind of religiously sponsored service anywhere else, because it will cause religious organizations to withdraw from social participation and community life.”

From this perspective, the heart of the debate over religious exemptions comes down to who wins the rhetorical battle of harms. We’ve seen in other contexts, like abortion rights, that rhetorics of harm are unstable, and can be co-opted and appropriated to support diametrically opposed positions and policies. The question of who is harmed in the tug of war over religious exemptions–either by the granting of exemptions or by the withholding of them–is live, in flux, and coming to a church basement near you.

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