Monthly Archives: May 2016

Protecting Rights Holders from Harm: Democrats Introduce the Do No Harm Act

Dozens of religious liberty laws were introduced into state legislatures this year, designed to address manufactured threats to religious believers. In fact, religious liberty rights are amply protected by state and federal law in every state, yet religious conservatives have been on the offensive to use religion as part of a backlash against same-sex couples gaining the right to marry, and against the rights of transgender people to equality and dignity.

Last Wednesday the defenders of equality went on the offensive themselves, introducing into Congress a law that would limit overreaching in the name of religion. Representatives Joseph Kennedy III and Bobby Scott introduced into the House of Representatives the Do Not Harm Act. The bill seeks to amend the Religious Freedom Restoration Act (RFRA), a federal law that was enacted in 1993 to protect religious minorities from discrimination but has since been used to infringe on the constitutional and statutory rights of third parties in the name of religion.

A few years ago, the Supreme Court’s overly broad interpretation of RFRA led to the Hobby Lobby decision where the Court found that certain for-profit entities could avoid compliance with a requirement in the Affordable Care Act ensuring contraceptive coverage at no cost to their employees by claiming a religious objection to doing so. After Hobby, many feared an increase in the number of people and institutions that sought to use religious exemption laws to limit the rights of third parties. However, if the GOP-led Congress passes the Do No Harm Act, religious objectors seeking to use overly broad interpretations of religious accommodations laws will be dealt a serious blow. The Act would not only protect the rights of women and LGBTQ folks, it would also protect the rights of people of color, a group less talked about in this context who stand to suffer great harm from some religious accommodation laws.

Let’s take the latest religious exemption case heard by the Supreme Court, Zubik v. Burwell, as an example of how some religious exemptions can cause great harm to communities of color. The plaintiffs in Zubik are non-profit religious organizations that refuse to comply with the accommodation that the government provides for faith-based entities that have religious objections to providing contraception coverage. These employers may notify either the U.S. Department of Health and Human Services (HHS) or their insurer of their religious objection to contraceptive coverage. The insurer itself then provides the contraceptive coverage to the employees, at no additional cost to either the enrollees or the objecting organization. Earlier this week the Court decided to punt this case back to the lower courts to work out a solution. If the plaintiffs in Zubik had won, thousands of women of color who work at religious non-profits, including universities, hospitals, and social service organizations would have been stripped of their right to no-cost insurance coverage for contraception. Little Sisters of the Poor Home for the Aged in Denver was one of the employers that challenged the contraception requirement in Zubik. Like most nursing homes, the employees at the Little Sisters nursing home are women of color.

While these organizations employ women of all backgrounds, the case has huge ramifications for women of color since lack of access to quality reproductive health care plays a large role in the overall health disparities faced by communities of color today.

How so? The advocates of overly broad protections for religious liberty rights under RFRA, just like the plaintiffs in Zubik, want to be excused from complying with generally applicable laws (like anti-discrimination laws) even if doing so would impose a material harm on other people – such as denying their right to adequate health care, to equal opportunity in the workplace, or to a have their marriage universally recognized as valid.

The Do No Harm Act would fix this by limiting the reach of RFRA to situations where no harm is done to others. A reasonable clarification that balances the rights of religious liberty against other important rights. In fact, this approach is exactly what the Supreme Court has taken in interpreting the limits of the First Amendment’s religious liberty protections.

For this reason, the Do No Harm Act is necessary to protect the equal rights of people of color. Unfortunately, the threat posed by overly broad interpretations of religious accommodation laws to communities of color doesn’t end at Zubik. There is a real danger that such laws could strip away many of the rights and protections won by people of color over the last few decades. While federal laws including the Civil Rights Act and Fair Housing Act contain strong protections against racial discrimination, those who wish to discriminate could also demand an exemption from federal antidiscrimination law under the current version of RFRA. Here, a religious objector would have to show that serving a particular group of people would burden their exercise of religion. Such race-based religious objections are not uncommon. A few months ago an interracial couple in Mississippi, a Black man and a Native American/Latina woman, were evicted from a recreational vehicle (RV) park because the landlord said his church opposed interracial marriages. The eviction forced the couple to move to another RV park with higher rent. If the Do No Harm Act is passed in Congress, the landlord would not be able to use religion as a license to engage in otherwise illegal race discrimination.

The Do No Harm Act can also be used as a tool for state legislatures and advocates hoping to push back against many of the state RFRA bills that have been popping up in state houses across the South. Many of these bills which were modeled after the federal RFRA have been used to provide religious objectors with a license to discriminate against not only LGBTQ folks, but racial minorities as long as the religious objectors can show that the state law placed a burden on their religion. For example, a number of state bills would allow a baker, a caterer, a rental hall, a photographer and others to refuse services not only to same-sex couples getting married but to interracial couples as well. If the Do Not Harm Act passes, state legislatures would be emboldened to pass similar amendment to state RFRAs.

This week’s introduction of the Do No Harm Act by two Democratic Congressmen marks a shift to the offensive for those who seek to create a reasonable balance between religious liberty and other fundamental rights, including equality. While we’ve been playing defense in state legislatures across the country, the bill marks the need for proactive measures to be taken in the fight for meaningful and sustainable anti-discrimination laws and protections for all citizens.

Supreme Court Gives Itself an Exemption from Deciding Zubik

Yesterday, the Supreme Court issued a bewildering non-decision in one of the year’s most important cases, Zubik v. Burwell. After granting cert in and consolidating seven cases, receiving at least seventy amicus briefs in addition to those filed by the parties, hearing oral argument, and requesting additional briefing, the Supreme Court has finally decided…. not to decide.SCOTUS

Zubik involves a challenge by nonprofit religious organizations to a requirement of the Affordable Care Act (ACA) that contraceptive coverage be included within most employee and student health insurance plans. The nonprofits argue that the ACA’s existing religious accommodation—which allows organizations to opt out of providing contraceptive coverage themselves, but ensures that this coverage is seamlessly provided by a health plans’ insurance company—itself violates the nonprofits’ religious rights under the Religious Freedom Restoration Act (RFRA). The plaintiffs lost nearly all of their challenges at the circuit court level, but SCOTUS’s unanimous order yesterday vacating those decisions and remanding the suits back down gives the nonprofits another chance to demand an even broader accommodation.

In declining to issue a substantive legal opinion, the Court stated that the parties should be “afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage.’” It’s difficult to fathom what such an approach would look like at this point, but that’s hardly the worst part of the Court’s order. What is far more problematic is the absolute lack of guidance it provides to lower courts at a time when the scope and meaning of RFRA is hotly contested.

Not only do significant differences between the parties remain within the current dispute, but yet another RFRA challenge to the contraceptive mandate is currently being litigated at the district court level. This challenge was brought by an individual health care consumer who argues that participating in a health insurance plan that includes coverage for contraceptives violates his sincerely-held religious beliefs. Such a claim stretches RFRA’s protections far beyond their breaking point, yet the Supreme Court has utterly declined to provide an analysis that might guide the district court in adjudicating this and other RFRA claims.

In addition, the Court’s order ignores the basic structure of the RFRA test. The Act states that the federal government may not substantially burden the sincere exercise of religion unless it is the least restrictive means of furthering a compelling governmental interest. While the precise meaning of nearly every element of the RFRA test is under-theorized, the basic structure of the test is clear—no accommodation is necessary unless there is a substantial burden on sincere religious exercise. In defiance of this threshold test, the Court’s order essentially asks the government to agree to provide a “less restrictive” alternative to the nonprofits without clearly holding that their religious liberty has been burdened in the first instance.

In its opinion, the Court specifically notes that it “does not decide whether petitioners’ religious exercise has been substantially burdened.” Nevertheless, it suggests that the government’s procedures “could be modified” so as to be acceptable to the nonprofits. This subverts the RFRA test, and could encourage the government in this and future cases to provide religious organizations with exemptions that far exceed what is required by law, and that substantially harm third parties.

Apparently, the Zubik plaintiffs aren’t the only ones who want an exemption from their legal responsibilities. In its order, SCOTUS has exempted itself from its obligation to issue a substantive decision on the case before it. To be fair, the order was likely issued in order to avoid a four-four split by the Court. Thus the real blame may be laid on yet another exemption— Congress’s attempt to exempt itself from its obligation to hold a hearing for Supreme Court nominee Merrick Garland. Until there is a ninth justice on the court, we may have to prepare for a confounding year of Constitutional remands, punts, and ties.

Legal Scholars Reveal How the Justice Department Has Given Government-Funded Religious Organizations a Pass for Discrimination

May 10, 2016—For two years in a row, in Burwell v. Hobby Lobby and Zubik v. Burwell, the Obama administration has argued before the U.S. Supreme Court that the Religious Freedom Restoration Act (RFRA) does not give religious believers the right to accommodations that would harm others. Yet an analysis issued by Columbia Law School’s Public Rights/Private Conscience Project (PRPCP), and signed by leading law professors, finds that for nearly a decade the U.S. Department of Justice (DOJ) has bestowed this right on religious recipients of government grants.

The PRPCP analysis argues that a 2007 DOJ ruling, which grants overly broad religious accommodations to federal contractors, misinterprets RFRA and violates the Establishment Clause of the First Amendment. The Bush-era DOJ ruling, commonly known as “the World Vision Memo,” creates exemptions for faith-based organizations (FBOs) that receive federal grant funding from compliance with federal anti-discrimination laws. The ruling has never been withdrawn by the Obama Administration.

President Obama has condemned recently enacted “religious liberty” laws in North Carolina and Mississippi, though his administration maintains a policy that has the same discriminatory effects, the PRPCP’s report shows. Faith-based organizations that are recipients of federal grants have increasingly relied upon the DOJ’s erroneous interpretation of RFRA to demand broad religious accommodations in order to allow them to receive public funding and then elect not to provide essential services that they deem objectionable, including providing emergency contraception to unaccompanied migrant girls who have been raped during transit, or providing transition-related healthcare to transgender patients.

Since President Obama took office, LGBT and reproductive rights advocates have demanded that his administration withdraw the World Vision Memo, and the PRPCP analysis supports this position. The DOJ’s World Vision Memo misreads the law of religious liberty by allowing faith-based organizations to pick and choose which parts of a federal grant they will perform, thus running afoul of the Establishment Clause.

Katherine Franke, the Sulzbacher Professor of Law at Columbia Law School and the faculty director of the Public Rights/Private Conscience Project, explained that “neither RFRA nor the Constitution permits the government to accommodate religious belief in a way that harms other citizens, particularly the vulnerable intended beneficiaries of these federal programs. The DOJ’s misinterpretation of RFRA in this context surrenders to faith-based organizations the power to rewrite publicly funded programs to conform to grantees’ religious beliefs.”

“The idea that an organization can apply to provide reproductive health care for migrant minors and then refuse to provide that care because it conflicts with their religion is, frankly, absurd,” said Elizabeth Reiner Platt, Associate Director at the Public Rights/Private Conscience Project. “This policy makes it impossible for Congress to effectively address the pressing needs of incredibly vulnerable populations.”

Read the analysis here.

Religious Accommodations Try to Turn Back the Clock

Yesterday, PRPCP Associate Director Liz Reiner Platt published an article on Rewire examining how proposed religious exemption laws could renew religious opposition to desegregation.

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

Read the full article here.