Monthly Archives: February 2016

Zubik Amicus Defends Employees’ Religious Liberty

Over the past several years, the fight for religious exemptions has been framed as a struggle between religious freedom on the one hand and LGBT and reproductive rights on the other. Largely ignored is the fact that as religious exemptions become broader, they will likely conflict with the religious beliefs and practices of third parties. An amicus brief for the upcoming case Zubik v. Burwell, submitted by a coalition of progressive Catholic organizations including Catholics for Choice, brings this problem to light. The brief raises virgin-164076_640interesting and important questions, as well as concerns about the appropriate scope of religious exemptions. It forces those of us on the left to think critically about whether appealing to progressive religious liberty claims may be a more effective way to combat conservatives’ push for ever-broader exemptions, or whether this simply adds fuel to the exemption fire.

The Zubik case involves a claim by religious nonprofits that, under the Religious Freedom Restoration Act (RFRA), they are entitled to total exemptions from the requirement of the Affordable Care Act (ACA) that they provide their employees with health insurance covering cost-free contraception. Under RFRA, the government may not impose a substantial burden on religious exercise unless this burden is the least restrictive means of furthering a compelling government interest. In Hobby Lobby, the Supreme Court held that certain for-profit companies opposed to paying for contraceptives were entitled to exemptions from the ACA mandate, as the government had already established a less restrictive way to guarantee cost-free contraceptive coverage to employees. Under this arrangement, religious corporations could submit a form to their insurance company or the government stating their refusal to pay for contraception. Their insurance provider or a third party administrator would then be required to pay for coverage. Religious nonprofits now argue in Zubik that even this accommodation—which requires them only to fill out a form and then work with an insurance plan that covers contraception— violates their religious freedom. They are demanding a total exemption, which would result in their employees’ having no access to cost-free contraception through their insurance plan.

Academic and media articles, as well as several amicus briefs opposing the religious exemption, have argued that neither the Establishment Clause nor RFRA permit the government to sanction religious accommodations that would harm third-parties. This is a sound reading of Supreme Court precedent, including Cutter v. Wilkinson and Estate of Thornton v. Caldor. The majority of commentators, however, have focused on the potential harms that a total accommodation would inflict on employees’ right to contraception. The creative Catholics for Choice brief additionally highlights a potential harm to employees’ religious rights.

The amicus brief argues that a total exemption would harm employees’ “religious liberty interest in making their own decisions about contraceptive use.” At first glance, this argument makes sense: a company should not be able to force its employees to adhere to its own religious code. However in order to make a strong claim that employees’ religious exercise would be burdened by a total exemption, the brief would have to argue that at least some employees’ faith requires not only that they have access to contraception, but that they have access to cost-free contraception through their employer’s insurance plan. Otherwise, granting employers an exemption would not create a direct conflict, but would simply make employees’ exercise of religion more difficult and costly. While the Supreme Court is highly deferential to religious burden claims, it has in the past been wary of striking down government actions that do not prohibit religious practice, but simply make it more expensive. Eliminating contraceptive coverage from employee health plans absolutely harms women’s health and equality. It’s not clear, however, that the Court would accept a claim that employees’ religious faith mandates this coverage, nor do amici explicitly posit any such belief.

On the other hand, the Supreme Court appeared to accept an equally exacting religious liberty claim in Hobby Lobby. In that case, the plaintiffs argued that their religious faith both prohibited them from offering health insurance that covered contraception and from not offering any insurance—in other words, the only moral option would be to provide incomplete insurance coverage. This religious belief appeared suspiciously crafted to evade the ACA mandate, but the court nevertheless seemed to accept it at face value. The Court found that the ACA mandate burdened companies’ religious exercise even though the punishment for not providing contraception was only a fine— and thus it did not prohibit but merely made the employers’ exercise of religion more expensive. In fact, companies’ may actually have saved money by declining to provide health insurance, and paying a fine estimated to be less than the cost of insurance. Considering the strong deference given to the highly specific religious liberty claim in Hobby Lobby, it’s therefore possible that a court would accept amici’s argument that a total exemption from the mandate would burden employees’ religious practice.

A second challenge of amici’s argument is that the Court in general rejects religious freedom claims that seek to restrict the actions of a third party, and rightfully so. By arguing that employees’ have a religious right to contraceptive coverage through an employer plan, amici essentially argue that their religion gets to dictate the actions of their employer. This is problematic, for the same reason the nonprofits’ requested exemption itself is problematic—one’s religious beliefs should not be used to control the actions of a third party. The nonprofit plaintiffs in Zubik are attempting to use RFRA to forbid their insurance companies and third party administrators from providing contraception. While I agree with amici that this request should fail, basing such a decision on employees’ religious rather than reproductive rights could set a risky precedent that allows for ever-broader religious exemption claims by both institutions and individuals. Imagine, for example, that a Quaker nonprofit requested an exemption from an open carry law—should an employee’s religious belief in the choice of whether or not to bear arms trump the requested exemption? Does an employee have a religious right to be permitted to bring a gun to work? Should the Quaker institution have never received the exemption allowing it to restrict its employees’ rights in the first instance? Any request—whether by employer or employee—to use religion against a third party should be treated with suspicion.

The amici may counter this critique by arguing that they do not demand a religious right to contraceptives per se, but merely a religious right not to be affected by a religious exemption with which they disagree on religious grounds. Since nearly every accommodation may conflict with another person’s religious beliefs, however, this argument calls into question the fairness of granting accommodations at all. This is especially true considering the reality that a more resourced employer or corporation will have a far greater ability to request religious exemptions from the government, and employees may not always have the ability to ensure that their religious beliefs are taken into consideration.

Finally, amici also argue that an employer’s denial of benefits “degrades the dignitary free exercise rights of employees,” and granting an exemption would involve the government in “demeaning those employees’ exercise of religious… freedom.” This is a compelling claim— religious practitioners certainly have a dignitary interest in ensuring that their beliefs and faiths are not singled out for ill-treatment. Employees also have a dignitary interest in access to contraception, which allows them to protect their health and plan their reproductive lives. It’s not clear from the brief, however, how far the concept of a “dignitary free exercise” right should extend. It would be entirely unworkable to force the government to resolve competing “dignitary free exercise” claims for incompatible religious beliefs. Could a Christian military officer who has a religious opposition to hijabs argue that, by accommodating a Muslim soldier, the government imposes dignitary harm on her religious exercise? Could a Jew argue that his religious dignity is harmed by a religious exemption allowing Jews for Jesus to proselytize on public property? These are complicated questions, and the brief’s call to respect dignitary free exercise rights begs the question of whether the government should be in the business of sanctioning any religious exemptions, or whether this by definition creates a hierarchy of beliefs.

Despite some limitations in the amici’s brief, it has nevertheless brought to light the ways in which granting broad religious accommodations, especially to large corporations, will pose complex conflicts between various religious actors. The potential for clashes of faith is seemingly endless. Who should prevail when a Catholic hospital that has banned abortion employs a Catholic doctor whose religious faith compels her to place a mother’s health or life over that of a fetus? Which exemption wins out when a conservative Christian social services organization opposed to LGBT rights hires a Lutheran counselor whose religion demands tolerance? Where does one party’s religious liberty end and another’s begin? While a concern for employees’ access to reproductive healthcare will hopefully prevail in Zubik, amici’s brief should pressure the Court to take a hard look at the consequences of broad religious exemptions, and the ways in which they may harm the religious liberty of others.

Remembering Scalia’s Legacy on Religion

In the wake of Justice Scalia’s passing, much is being made of the Justice’s faith, and some commentators are claiming that Constitutionally-protected religious freedoms are now under threat. Nothing could be further from the truth, as a close look at Scalia’s legacy shows the Justice weakened religious liberty by elevating monotheistic beliefs and practices over protections for religious diversity. In two upcoming cases, Scalia’s replacement should seize the opportunity to strengthen freedom of conscience by protecting the separation of church and state, and by refusing to allow the use of religion to harm others with different beliefs.

This week, presidential candidate Ted Cruz called Justice Scalia an “unrelenting defender of religious liberty,” and released a campaign ad that claims “life, marriage, religious liberty…we’re just one Supreme Court justice away from losing them all.” Numerous articles and statements from politicians and commentators have echoed this sentiment. In remembering the Justice, Marco Rubio stated “one of the greatest honors in my life was to attend oral arguments during Town of Greece v. Galloway and see Justice Scalia eloquently defend religious freedom.”

It’s important to note, however, that Town of Greece didn’t concern the right of an individual to practice religion in the face of government interference. Rather it bolstered the ability of the government to impose religion on its citizens. In the opinion, Scalia and four other justices held that beginning town board meetings with prayers, nearly all of which were led by Christian clergy and many of which contained explicitly Christian themes, did not violate the Establishment Clause of the First Amendment. To me, this sounds more like religious hegemony than religious freedom.

In fact, during his tenure Scalia repeatedly argued— typically in dissent— that the Establishment Clause forbids only government support for a particular religion, and not religion in general. In his McCreary County v. ACLU dissent he went further, claiming that the government may not only favor religion over secularism, but that “it is entirely clear from our Nation’s historical practices that the Establishment Clause permits” the endorsement of monotheism and the “disregard of polytheists and believers in unconcerned deities.” Far from promoting broad religious liberty, Scalia’s Establishment Clause opinions demonstrate that he was more interested in preserving the country’s historical support for Judeo-Christian practice and beliefs.

Scalia’s Free Exercise Clause opinions are perhaps even less protective of religious liberty. Notably absent from Cruz and Rubio’s comments was any mention of Scalia’s infamous opinion in Employment Division v. Smith, which has consistently outraged religious conservatives and led to the bipartisan adoption of the Religious Freedom Restoration Act (RFRA). That case held that the government need not accommodate the religious use of illegal drugs, and could constitutionally refuse to provide unemployment benefits to Native Americans fired for using peyote.

As he was pointedly reminded during the Hobby Lobby oral argument, Scalia wrote in Smith that the Free Exercise Clause did not require government-imposed burdens on religious exercise to be justified by a compelling interest, as such a rule would be “courting anarchy” and “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Such rigorous protection of religious practice, Scalia argued, “contradicts both constitutional tradition and common sense.” In light of the recent flood of religious exemption litigation, Scalia’s decision was thoughtful and prescient, but it was certainly not hailed as a boon for religious liberty. It also may have failed to take into account the ways in which seemingly neutral laws can negatively impact minority religions.

Finally, Scalia’s vituperative language in LGBT cases affirms that he was often motivated less by a concern for religious freedom in general than by support for particular religious beliefs. His Lawrence v. Texas dissent argued that sodomy laws had the rational basis of furthering the “belief of [] citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’” a belief that is of course rooted in a narrow understanding of religious morality not universally shared. He was the only other Justice to join in Thomas’s Obergefell v. Hodges dissent, which claimed that the decision had “potentially ruinous consequences for religious liberty.” This assertion ignored the fact that many religious groups in fact supported the right to same-sex marriage. While Scalia did not openly base these decisions in Christian doctrine, he seemed to evoke conservative religious reasoning while glossing over the diversity of religious belief on issues like same-sex relationships, contraception, and abortion.

Looking ahead, Scalia’s replacement will have the opportunity to have an immediate impact on the court in ways that may in fact preserve religious liberty for everyone by strengthening the protections of the Establishment Clause and protecting religious minorities from majoritarian doctrine. In the upcoming Trinity Lutheran Church v. Pauley, the court will decide whether or not a state is required to provide funding to a church as part of an otherwise neutral grant program. Scalia would have been a sure vote for the Church based on his belief that the government cannot withhold benefits solely based on religion, as he articulated in his Locke v. Davey dissent. A Justice with a more encompassing understanding of religious freedom should find that the government need not, and perhaps even cannot, provide funding directly to a Church. Such a holding would show a deeper respect for religious pluralism, including non-believers.

In Zubik v. Burwell, Scalia would likely have expanded upon his Hobby Lobby vote, and held that a religious company can permissibly cut off its employees’ access to contraceptive coverage. His replacement should find that using one’s religious beliefs to harm others, who may not share those religious beliefs, violates the Establishment Clause guarantee that the government not favor any particular religion or religion in general.

A hard look at Scalia’s opinions demonstrates that he held greater concern for the preservation of conservative, monotheistic beliefs and traditions than for religious liberty more broadly. Our next Justice should be a true defender of religious liberty by showing respect for a diversity of beliefs, and by refusing to permit religious actors to force their practices on those that do not share them.

We’re Hiring! Contract Position – Temporary – Research Analyst – Racial Justice Program

Research Analyst Position (full-time/part-time)
Contract position – Temporary

The Racial Justice Program, part of Columbia Law School’s Public Rights/Private Conscience Project, produces original research on the impact of religious exemptions on communities of color and leverages that research into policy and advocacy interventions.

Columbia Law School’s Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. Its staff conceptualizes and operationalizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

The Program is seeking a Research Analyst to join our team. The Research Analyst will examine ways religious exemptions impact communities of color through health care restrictions, employment restrictions, and other means. This is a 2-month full-time contract position, with possibility of extension. Alternatively, for the right candidate in need of a more flexible work schedule, this can be a 4-month part-time position, with possibility of extension.

Key Tasks include:

• Determine analytical requirements for data processing, including the selection of appropriate data, tabulations and statistical methods

• Identify and interpret trends or patterns in complex data sets

• Interpret data and analyze results using statistical techniques and provide report(s)

• Assist with preparation of presentations describing project methods and results of analyses Requirements:

• A master’s degree from an accredited college in statistics, sociology, public policy, or a closely related field; with at least two (2) years of related work experience, or

• A baccalaureate degree from an accredited college, with at least four (4) years of related work experience

• Strong quantitative and problem-solving skills; experience with empirical methods and data analytics including working with large, complex data sets and conducting research

• Experience collecting and working with secondary data collection for social science research including data cleaning, analysis, and documenting procedures

• Knowledge in the use of one or more statistical research software packages (STATA, SPSS, SAS)

• Ability to think outside of the box and develop novel strategies for analysis

• Experience working effectively both independently and as part of a team

• Knowledge of health care policies and employment policies strongly preferred

• Knowledge of racial justice issues strongly preferred

To apply, please submit your resume and cover letter by e-mail to gender_sexuality_law@law.columbia.edu.

States Attempting to Preempt LGBT-Friendly Municipalities

As legislators across the country duke it out over a huge variety of proposed “religious freedom” (aka “right to discriminate”) bills, some municipalities are going in the opposite direction. In 2015, cities and counties from Anchorage to Little Rock to Sedona, Arizona made efforts to protect their LGBT residents by passing local ordinances that ban LGBT discrimination in some contexts.

In Georgia, where at least four bills have been introduced that would create religious exemptions from providing services to LGBT people, the city of Athens just passed a resolution asking the city manager to make recommendations on how to curb LGBT and race discrimination in local bars. In West Virginia, where a state RFRA passed the House Judiciary Committee last week, mayors in cities with LGBT antidiscrimination statutes are speaking out against the bill, and the Lewisburg city council recently approved a bill to add sexual orientation and gender identity protections to the city’s human rights ordinance. Since Indiana’s RFRA debacle last year, a handful of municipalities have stepped up to pass antidiscrimination laws that protect LGBT Hoosiers. And in Florida, where a sweeping religious exemption bill has been introduced, Jacksonville is moving forward with a proposed antidiscrimination ordinance.

Opponents of LGBT rights aren’t letting these ordinances go unchallenged. Conservative legislators are turning to preemption bills[1] as a way to overturn existing, and prevent future, LGBT antidiscrimination ordinances. Over the past year, legislators have introduced bills in Michigan, Texas, West Virginia, Missouri, Indiana, and North Carolina that would have preempted local efforts to pass antidiscrimination protections. Thankfully none of these were successful, although a preemption bill was signed into law in Arkansas last year, and Tennessee passed an antidiscrimination preemption law in 2011. Preemption bills are currently pending in Oklahoma and Virginia, and more may pop up as state legislative sessions continue.

While many preemption bills do not explicitly mention religion, they are often introduced alongside religious exemption laws, supported by religious organizations, and justified in religious terms. For example, Tennessee’s preemption law, the “Equal Access to Intrastate Commerce Act,” was passed with strong support from religious groups including the Family Action Council of Tennessee, Southern Baptist Ethics & Religious Liberty Commission, and Tennessee Baptist Convention. In Arkansas, a preemption bill was sponsored by the same legislators as a proposed state RFRA, and was promoted by a third legislator, Mary Bentley, as essential for religious freedom. Benley explained, “I don’t think…a baker that loves the word of God that’s bringing her children up to honor God and to worship God should have her business destroyed because she doesn’t want to bake a cake for somebody that’s a transgender trying to marry somebody else.” And during a Texas “Emergency Pastor Briefing” that followed the passage of a LGBT antidiscrimination law in Plano, State Representative Matt Shaheen told the assembled pastors that legislation was “being worked on” to resist the local ordinance. Shaheen and fellow Plano Representative Jeff Leach subsequently introduced a preemption bill, ostensibly to create consistency around statewide antidiscrimination provisions.

Other attempts to preempt local LGBT protections are included as part of a religious accommodation bill, such as Indiana’s pre-“fix” RFRA (although this merely subjected claims under local antidiscrimination ordinances to a RFRA analysis rather than preempting them entirely). Thus preemption laws are yet another example of the use of “religious freedom” as a sword rather than a shield. In the name of religious liberty, some states are trying not just to protect religious businesses from any requirement that they treat LGBT customers fairly—they go much farther by attempting to restrict the creation of any protections for LGBT people.

Preemption bills have long been a favored tactic of gun rights groups, as well as big businesses that wish to limit the regulation of e-cigarettes, food (think: NYC’s calorie posting and Bloomberg’s defeated soda “ban”), factory farms, and other health and environmental dangers. In recent years, preemption bills have increasingly been adopted to curtail local minimum wage increases, paid sick leave laws, and other labor protections. The tobacco industry used preemption bills to great effect in the 1980s and 90s. Bills often imposed weak regulations on tobacco use, which were either expressly or implicitly intended to establish a comprehensive regulatory scheme preempting any local attempts to pass more stringent regulations. This wolf-in-sheep’s-clothing approach is similar to that used in Indiana’s (recently-killed) SB 344, which would have totally preempted the passage of any new LGBT antidiscrimination ordinances as part of a weak and exemption-riddled state antidiscrimination law.

Lawyers and advocates should keep a keen eye out for any preemption laws introduced this session… including ones that are disguised as watered-down and exemption-rife antidiscrimination laws. While these bills may be promoted as efforts to create consistency and ease administrative burdens on statewide businesses, many anti-LGBT preemption bills are in fact back-door methods of imposing the values and beliefs of the religious far-right onto states and cities that are more welcoming of their LGBT populations.

[1] State preemption is the complex (and, let’s face it—somewhat dry) legal doctrine governing interactions between state and local law. For those interested, preemption expert Paul Diller has published a thorough analysis of the various schemes that states have adopted to balance state and municipal power. For the rest of us, suffice it to say that in a majority of states, at least some cities and counties are able to pass a wide variety of legislation, so long as this legislation does not conflict with the state’s constitution and laws. Courts have employed a variety of tests to determine when such a conflict exists, but are unlikely uphold an ordinance in the face of a state law that expressly limits local power within the relevant field.

Indiana Orgs Demand Right to Discriminate (Under the Equal Protection Clause!)

Unless you haven’t read the news in quite a while (in which case… are you in for a surprise!) you know that Indiana has been on a RFRA roller coaster for nearly a year.

To summarize: in expectation of the Obergefell decision, Indiana passed a broad “religious freedom” law that would have allowed individuals and companies to assert a religious rights defense to claims of LGBT discrimination. The state faced a PR firestorm and immediately passed a “fix”  explaining that statute could not be used to discriminate. Of course Indiana never had state LGBT antidiscrimination protections in the first place, so the “fix” was essentially meaningless except when it came to municipalities that included protections for LGBT people in their antidiscrimination ordinances. The state is now in the midst of RFRA battle round two, with legislators introducing a handful of assorted religious liberty and LGBT rights bills that have, thus far, been killed. However three anti-LGBT religious groups aren’t waiting to see what happens this session: they’ve already filed a complaint arguing that municipal LGBT protections, and last year’s RFRA “fix,” are unconstitutional violations of their religious liberty.

The complaint alleges that the RFRA “fix” and local ordinances are violations of the state and U.S. constitutions including the substantive due process clause, establishment clause, free exercise clause, freedom of speech, freedom of association, and—ironically— the equal protection clause.

Courts have overwhelmingly rejected the argument that religious freedom protections give one a “right to discriminate” against LGBT customers or employees, often looking to earlier race discrimination cases for guidance. For example, the idea that the free exercise clause provides a right to discriminate was deemed “patently frivolous” by the Supreme Court in 1968’s Newman v. Piggie Park. Even if strict scrutiny is applied, the Court’s opinion in Bob Jones University v. United States found that the government’s interest in preventing discrimination outweighed any religious burden this imposed.

The Indiana lawsuit seems to hang its hat on the fact that the amended RFRA treats different religious actors differently—clergy members and churches are still exempt from nondiscrimination provisions while other individuals and corporations are not. The plaintiffs claim that the government has no compelling interest in allowing exemptions for some, but not all, religious groups. This argument is similar to the one being put forth in the upcoming Supreme Court case Zubik v. Burwell, which challenges the validity of providing one type of religious exemption from the ACA’s contraceptive coverage requirement to churches, and a different type of exemption to religious nonprofits.

The argument that anyone with a religious belief—from a Rabbi to a multinational corporation—should be given an equal license to discriminate is (to borrow language from the Court) patently frivolous, and ignores the enormous differences in the societal roles these parties play as well as the enormously variant risks of regulating their actions. The Supreme Court has already done significant damage to equality rights in its Hobby Lobby decision by holding that for-profit entities can exercise religion. It should not further weight the scales in favor of the right to discriminate by limiting the ability of the government to make rational distinctions between churches and less pervasively religious institutions.

Religion is not a free pass to ignore antidiscrimination legislation, as the Supreme Court has repeatedly held. Certain exceedingly narrow exceptions have historically been given to churches and clergy due to their distinct role in American society and culture. However applying these exceptions to, say, your local cupcake shop (or even worse, your local clinic) turns the government’s message of equality on its head: changing the robust guarantee of “LGBT citizens have equal rights” to the anemic “LGBT citizens have equal rights… unless you think they don’t.”