Monthly Archives: March 2016

Georgia Governor Vetoes Right-To-Discriminate Bill – HB757

This blog was originally posted at Religion Dispatches

Yesterday, Governor Nathan Deal announced that he would veto HB 757, a broad religious exemption bill that would have sanctioned discrimination against LGBT and other Georgians. A Frankenstein-esque combination of what had previously been several different bills, HB 757 would have violated the Establishment Clause by stripping many Georgians of their legal rights in order to accommodate the preferences of religious actors. Columbia Law School’s Public Rights/Private Conscience Project recently released a memo, signed by many Georgian legal scholars, explaining why the bill was unnecessary, discriminatory, and unconstitutional.

Two of Georgia’s three biggest cities—Atlanta and Savannah—both have municipal ordinances banning some forms of discrimination based on sexual orientation and gender identity, and others may follow suit. Atlanta’s ordinance is particularly broad, banning LGBT and marital status discrimination in housing, public accommodations, and private employment. HB 757 would have allowed religious organizations, individuals, and businesses to ignore local ordinances and discriminate against LGBT Georgians, essentially prioritizing anti-LGBT religious beliefs over the rights and liberties of others. A few sections of the bill went even further, and could have sanctioned discrimination on the basis of race, sex, nationality, religion, disability, and pregnancy.

Governor Deal’s veto is an important step in the right direction, but the debate over a religious right to discriminate is far from over, including in Georgia. Legislators who support HB 757 have already called for a special session to override the Governor’s veto, and many other states have introduced bills similar to HB 757.

Below is a run-down of some of the worst provisions of the bill. The list also notes similarities between sections of HB 757 and bills that have been introduced in other states across the county:

  • One section of the bill would have given faith-based organizations, including schools, universities, and certain non-profits, the right to refuse (1) to rent property for events that they find objectionable; and (2) to provide “social, educational, or charitable services that violate [their] sincerely held religious belief.” Georgians could therefore have been denied services ranging from adoption to higher education to hospice care based on their sexual orientation or gender identity—or even based on their race or nationality. Moreover, faith-based organizations could refuse to provide nearly any service otherwise required by Georgia laws and administrative rules—for example, regulations governing requirements for care at day care facilities, drug treatment centers, or nursing homes. Bills that offer similar protection to businesses that with to discriminate are being considered in Mississippi, Missouri, and many other states.
  • Another provision stated “[a]ll individuals shall be free to attend or not attend” marriages and other rites at their discretion. At first glance, the provision seems merely silly, since it’s difficult to imagine a circumstance in which one would be legally required to attend a wedding in the first place. However, if the word “attend” were to be read broadly, the bill could have given court clerks, officials, and even judges the state-sanctioned right to discriminate against Georgians exercising their Constitutional right to marry. It could also have allowed businesses that sell wedding-related services—such as musicians, florists, or caterers—to discriminate against customers based on religious beliefs, since providing these services may require attending a wedding. This section of the bill contained no ban against invidious discrimination otherwise prohibited by state or federal law, and therefore may have empowered government officials and wedding-related service providers to refuse to attend interfaith or interracial weddings. Allowing state actors to discriminate poses additional Establishment Clause concerns, since it gives the appearance of State support for a particular religious belief. At least eight states, including Kim Davis’s home state of Kentucky, have or are considering bills that would allow government employees to discriminate.
  • A third part of HB 757 stated that no faith-based organization “shall be required to hire or retain as an employee any person whose religious beliefs or practices or lack of either are not in accord with the faith based organization’s sincerely held religious belief,” except as required by the Georgia or federal Constitutions or by federal law. This section would have allowed faith-based organizations to fire employees expressly for their sexual orientation or gender identity. It could also lead to discrimination against pregnant women and single parents, especially single mothers, as well as the enforcement of rigid, invasive, and discriminatory codes of conduct. This section of the bill is somewhat similar to one introduced in Missouri, which aims to remove religious organizations from the definition of “employer” within the state’s human rights law.
  • Finally, the bill also contained a Religious Freedom Restoration Act (RFRA) provision modeled on the federal RFRA. While the RFRA contained a caveat that it should not “be construed to … [p]ermit invidious discrimination on any grounds prohibited by federal or state law,” it did not require compliance with municipal laws banning sexual orientation, gender identity, and marital status discrimination. It therefore would have invited individuals and businesses to assert religion-based justifications for avoiding compliance with local anti-discrimination laws. Over a dozen states from Iowa to New Mexico have introduced RFRAs.

While HB 757 is gone for now, it’s far from forgotten. There’s still a chance that legislators could override the Governor’s veto, and dozens of similar bills are still waiting to be picked up in states nationwide. It’s therefore important to understand that the veto of HB 757 was not just a win for LGBT equality or an acknowledgment that discrimination is bad for business. Rather, it was a necessary step to preserve the balance between religious and secular rights enshrined in the First Amendment of the U.S. Constitution.

Why Zubik is Especially Important for Women of Color

By Elizabeth Reiner Platt and Kira Shepherd

This blog is also available at Religion Dispatches

From the forced breeding of slave women, to the eugenics movement of the 1920s to a relatively recent campaign to sterilize incarcerated women, the institutional denial of women of color’s reproductive freedom has left many mistrustful of medical institutions and the government’s attempts to interfere with their reproductive choices. This has led, in turn, to poor health and political disengagement amongst communities of color. Now, the Supreme Court’s decision in Zubik v. Burwell may effectively strip thousands of women of color of their right to no-cost insurance coverage for contraception.

For those not following the case, Zubik is a challenge to the Affordable Care Act’s contraceptive mandate, which requires certain employer-sponsored health insurance plans to cover contraception with no co-pay. The Obama administration has already created an accommodation for religious non-profits opposed to birth control, which allows them to opt-out of paying for contraceptives while maintaining insurance coverage for their employees. The organizations suing in Zubik, however, want to prevent their employees from receiving coverage through the plans at all. They claim that under the Religious Freedom Restoration Act (RFRA), they are entitled not just to refuse to pay for birth control themselves, but to demand that their insurance providers refuse to offer it.

While religious organizations employ women of all backgrounds, the Zubik case should be particularly concerning to women of color. Lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today. Women of color have the highest rates of unintended pregnancy, abortion, and maternal mortality, all of which have taken a toll on the psychological, economic, and social vitality of these communities.

Moreover, as abortion clinics across the country close due to the conservative attack on abortion rights, women of color are harmed disproportionately. Clinic closings make it especially hard for low-income women and women of color to get an abortion, since many cannot afford to travel the long distances needed to reach a clinic. A recent New York Times article found that clinic closings appear to be closely linked to the uptick in searches for illegal, self-induced abortion.

In addition, women who have unintended pregnancies are more likely to abuse substances while pregnant and less likely to seek prenatal care, which can negatively impact the health of the fetus. Some unintended pregnancies cost women of color their lives. The United States is now one of only eight countries—including Afghanistan and South Sudan—where the maternal mortality rate is actually increasing. These numbers are even bleaker for women of color in the U.S., where black women are four times more likely than white women to die in childbirth.

The pervasive health disparities among communities of color can be traced back, in part, to a long legacy of reproductive coercion. In 2003, the Institute of Medicine produced astudy about the causes of racial health disparities in America. It found that many of the disparities are rooted in historic and current racial inequalities, including poor socio-economic conditions as well as implicit biases held within the medical community that lead to subpar treatment.

Eliminating the disparities in reproductive health care, including high rates of unintended pregnancy, involves increasing access to contraception and contraceptive counseling. Access to contraception allows women of color to plan whether and when they have a child, which provides them with greater financial stability and freedom. Women of color, on average, earn significantly less than white women, and many cannot afford to pay for quality contraception.

The IUD, for example, is considered the most effective contraception available on the market today, but because it costs between $500 to $1000 only 6% of black women have used IUDs compared with 78% who have used birth control pills. Providing women of color with access to no-cost contraceptive coverage is an important first step in ameliorating the overall health disparities between women of color and white women in the United States.

It should be no surprise that when the U.S. Department of Health and Human Services asked The Institute of Medicine to come up with a list of women’s health services that should qualify as preventive care and require no co-pay under the Affordable Care Act, the Institute included contraceptive care and counseling in their recommendations, two services that can help right some of the wrongs done to women of color in the area of reproductive justice and liberty. It would be a grave injustice for the Supreme Court to allow the plaintiffs in Zubik—and others who might follow in their wake—to take us one step back.

Two Failed Efforts to Reign in Religious Exemptions

Last week in Missouri, Democratic legislators held a dramatic 39-hour filibuster in attempt to prevent the passage of Senate Joint Resolution 39, a proposed amendment to the Missouri Constitution. If enacted, it would prevent the government from imposing penalties on certain religious organizations or individuals for “acts in accordance with a sincere religious belief concerning marriage between two persons of the same sex.” In other words, the government would be stymied from protecting LGBT couples from discrimination, and could be forced to award grants, contracts, and tax-exempt status to organizations that refuse to serve LGBT couples.

Despite a marathon effort, the filibuster was broken in a rarely-used procedural move on Wednesday morning, and the Resolution quickly passed. It now moves to the Republican-led House, and then to voters.

Meanwhile, in Idaho, State Representative John Gannon introduced a bill this session that would have eliminated a religious exemption from the state’s child injury law. The exemption, which Gannon has been trying to end since 2014, protects practitioners of faith-healing from prosecution if they fail to provide life-saving medical treatment to a sick or injured child. There has been increased media coverage of the exemption in recent years in response to numerous reports of preventable deaths within the Followers of Christ community in southwestern Idaho. Oregon eliminated its exemption in 2011, and saw a drop in the number of children who died from a lack of medical

Unfortunately Lee Heider, head of the Senate Health and Welfare Committee, never scheduled Gannon’s bill for a hearing and last week announced that it was too late. He justified his refusal to support the bill by stating, “I’m a First Amendment guy, and I believe in the First Amendment, which gives people freedom of religion.” Despite the fact that Free Exercise Clause doctrine provides only a limited right to obtain religious accommodations, and no right to use religion to harm others, Heider’s statement demonstrates that legislators can too easily sidestep difficult issues by deferring to overblown notions of Constitutionally-protected religious freedom.

In better news, there was a win in West Virginia on Saturday for those who oppose the use of religion to harm others. Two bills that would have given religious entities a license to discriminate against LGBT people did not pass by the end of the 2016 legislative session. However they are likely to come up again next year.

The failed efforts in Missouri and Idaho give a good snapshot of the multifaceted battle over religious accommodations. While exemptions relating to the culture wars, like the anti-LGBT bill in Missouri, often get the most press, accommodation disputes also crop up in areas from child welfare to zoning to labor unions. And although accommodations sometimes result in high-drama confrontations like Missouri’s overnight filibuster, they are just as likely to be quietly ignored, year after year, as demonstrated by Gannon’s repeatedly-snubbed bill to end protections for faith healers. As the 2016 legislative session continues in many states, we can expect a few additional public flare-ups (in addition to Missouri, keep an eye on Georgia, Virginia, and Tennessee) among the enormous number of proposed accommodations, as well as a few bills to end accommodations that go quietly into the night.

A Loud Silence in Two Accommodations Cases

Originally posted at Religion Dispatches on March 10, 2016.

The silence on the part of religious liberty advocates in a pair of recent cases involving Muslim employees would appear to be a simple case of prioritizing the religious beliefs of Christians over those of minority workers. But the explanation may be both more and less cynical.

On Monday, the New York Times reported on an ongoing labor dispute between around 200 Muslim workers and their employer, Cargill Meat Solutions, a meat processing plant in Fort Morgan, Colorado. Until recently, employees had been allowed—with prior permission from a supervisor—to take one or two short breaks per shift to pray, as required by their faith. While the employer claims this policy has not changed, in early December a group of workers was not permitted to pray when they chose to, then told by a supervisor “If you don’t want to work here, go home.” In response, many Muslim workers walked out. After three days they were fired, and have filed discrimination complaints claiming a violation of Title VII’s mandate that employees’ religious practices be reasonably accommodated.

A similar dispute occurred this winter in Wisconsin, where dozens of Muslim employees left the Ariens Company after being told they could pray only during pre-assigned break periods. Many observant Muslims pray five times a day, typically at set times. Both companies have argued that offering prayer breaks is not always practicable, but employees say they were previously accommodated, and that the prayers take no more time than a bathroom break.

The scope of what constitutes a “reasonable accommodation” under Title VII is tricky and fact-specific, so it’s not clear that the workers have a slam-dunk religious discrimination case. But more interesting than the strength of the legal claims has been the notable absence of outrage from conservatives, who have in recent years proclaimed themselves the defenders of religious freedom.

In a wide range of coverage of the stories since December, I found no quotes from any of the typical pro-accommodation sources—conservative politicians, lawyers, commentators and activists. Nor could I find any public reference to the dispute by a single municipal, state, or federal elected official, or from any non-Muslim religious rights organization. Conservative-leaning news sources that covered the stories minimized the employees’ concerns: one reported that the Wisconsin workers were fired for “violating a company break policy that doesn’t provide extra time for prayer,” while another called the Colorado incident “a Fake Tale of Anti-Muslim Discrimination.” Extremist website, typically a strong supporter of religious exemptions, called the workers’ actions “stealth jihad.”

The lack of response from the religious right on this issue isn’t terribly shocking, but it’s helpful to piece apart two of the likely motivating factors. First, and most obviously, is the element of Islamophobia that this election cycle has made disturbingly clear.

But the other reason, keeping in mind that both Cargill and Ariens are privately owned companies, appears to be the fact that the requested accommodation would benefit workers, potentially at their employer’s expense, rather than the reverse. In Hobby Lobby and similar cases, employers have used religious exemptions as a way to resist progressive government regulation intended to provide a benefit to workers. In contrast, the Muslim workers in these cases are demanding enforcement of a workers’ rights protection—specifically the Civil Rights Act, a law that some conservatives and libertarians resist to this day.factory

While employees say that the accommodation would not impose a meaningful burden on employers, the companies have implied that allowing prayer breaks could cause delays on rapid-fire production lines. It’s an interesting contrast that while the religious right sees no problem in shifting the cost of contraceptive health care from employers to employees or the government in order to accommodate the religious beliefs of a  company’s owners, they seem unwilling to allow workers to shift even the minimal costs associated with five-minute prayer breaks to their employers.

Truthfully, while the fact that those requesting the accommodation are Muslim may be more salient, the fact that they are factory workers could be the bigger motivator for the absence of conservative support. The prominent, conservative religious rights law firm The Becket Fund has litigated a small handful of religious accommodations cases involving Muslim plaintiffs, including claimants who sought the right to wear a beard at a government job or in prison, to build a mosque, or to pray in school. None of these cases, however, sought to secure workers’ rights in the private sector, or would have imposed any financial cost on employers.

There are plenty of arguments for why courts should exercise caution in granting any religious accommodation in the workplace, and should carefully consider the effects an accommodation will have on employers, employees, consumers and the public. It should raise suspicion, however, when those who most adamantly demand the right for business-owners to enforce their beliefs on workers seem unwilling to speak up for the religious rights of minority workers.