All posts by Cindy Gao

Anti-Vaxxers Illustrate Danger of Overly Broad Religious Freedom Laws

Originally posted at Religion Dispatches on February 2nd, 2015.

By Kara Loewentheil

In case you haven’t heard, the measles are back. In a big way. Cases of measles have been on the increase in the last few years, and this month an outbreak now reaching at least 94 patients has been tied to an exposure at Disneyland.

It appears that the source of this latest infection was likely either a foreign tourist or an American who returned carrying the disease from abroad, but the outbreak has brought renewed attention to the anti-vaccination movement (like this RNS commentary arguing that “Parents who do not vaccinate their children should go to jail”). What hasn’t been highlighted is the fact that the increased instances of measles and other previously-eradicated diseases in this country over the last decade are actually a cautionary tale about religious exemptions.

All states have mandatory vaccine laws for public school students, but almost all states (48 to be precise) allow exemptions for those who have a religious objection to vaccines. And 19 states allow exemptions for those with philosophical/conscientious objections that are not explicitly religious in nature. Although I haven’t delved into the legislative history of each of these laws, I think it’s a fair bet that when they were passed the religious exemptions were intended to protect a very small percentage of the population with religious objections to vaccination, like Christian Scientists or some parts of the Amish community.

It’s unlikely that the exemptions were intended to be used by the growing number of well-educated and well-off parents whose version of a “natural”/”organic” lifestyle has metastasized into vaccine science denial. There is a debate about whether the purpose of religious exemptions is to give religion special privileges or simply to protect religious people from discrimination, especially people of minority religions who may be disproportionately impacted by general laws that are made by people of a majority religion. But regardless of the reason, most religious exemption laws are, as the name suggests, only for religious believers. (In the military conscientious objector context, the set of protected beliefs was expanded to include a philosophical opposition to war that was of a similar scope and gravity to a religious objection.)

But a belief that vaccines cause autism (which is contrary to all scientific evidence) is not the kind of life philosophy that exemption laws are generally designed to protect. And in fact, there have beenrecent calls to remove the “personal belief” exemption from California’s vaccine law on the grounds that it is being abused and is destroying the herd immunity that is required to protect people who actually cannot be safely vaccinated, like young babies, or immuno-compromised individuals. (“Herd immunity” refers to the idea that a population can support a small percentage of unvaccinated individuals as long as the proportion of vaccinated individuals remains above a certain threshold – in that context herd immunity will protect most of the unvaccinated individuals because outbreaks will be thwarted by the high level of vaccinated individuals).

The irony is that if there were no such exemptions in a vaccine law, it is unlikely that a plaintiff would be able to win a Religious Freedom Restoration Act claim (under a state RFRA or similar statute). A plaintiff with a “personal belief” claim would certainly not be able to obtain a judicial exemption, since RFRAs protect only religious belief.

But even a plaintiff with a religious belief against vaccination would have an uphill battle. The government’s compelling interest in public health and the eradication of fatal diseases, particularly in the population of young children, seems very hard to overcome – especially in a situation where herd immunity is required for successful eradication of the disease.

Further, it’s hard to imagine a case in which you could have stronger third-party interests than this one. For those children who cannot be safely vaccinated, the presence of an unvaccinated child who might transmit the disease is literally a question of life or death.

And the fact that there might be more than one child who cannot be vaccinated in a given school isn’t fatal – that’s the narrow tailoring inquiry, which asks whether the government has designed the law being challenged as narrowly as it can in order to achieve the goal that law is after without unnecessary infringement on people’s rights. The law requiring vaccination of all children who can be safely vaccinated in order to protect both those children and the few children who cannot be safely vaccinated is as narrowly tailored as it can get.

All in all, these vaccination exemptions should remind us of the dangers of including overly broad exemptions in generally applicable laws, especially those protecting public health and access to civil rights like education. Once the exemptions are in, they are hard to get out and very difficult to control.

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

Is Refusal to Write Anti-Gay Cake Message a Violation of Religious Freedom?

Originally posted at Religion Dispatches on January 23rd, 2015.

By Kara Loewentheil

Denver, Colorado can feel like an alternate universe for a lot of reasons, but now we can add a new one to the list. Because in the first such case of which I’m aware, a bakery in Denver has been sued for refusing to bake a homophobic cake. According to the reports, the plaintiff in the suit requested that the baker bake him a cake that said “God hates gays” along with a picture of two men holding hands with an X over them. When the baker—who identifies as Christian herself—refused, the plaintiff filed a complaint with the Colorado Civil Rights Division, accusing her of religious discrimination.

It’s a snappy inversion of the now-classic example of bakers who refuse to provide wedding cakes for gay marriage or commitment ceremonies (or florists who refuse to provide flowers, photographers who refuse to photograph the ceremony, etc.). And that’s probably not an accident; if I were a betting woman, I’d bet heavily that a pro-religious-exemption think tank or law firm, like the Becket Fund, had come up with this plan and recruited a plaintiff to set it in motion.

The involvement of the local politicians mentioned in the story is likely strategic as well: Talking Points Memo quotes an “anti-gay” state lawmaker who says he supports the baker’s right to not print messages she finds offensive on her cakes. Now perhaps he’s just a stringent supporter of free speech, but it’s entirely possible that he supports this principle because he knows it’s more likely to come up the other way around, with religious conservatives refusing to provide goods or services associated with practices to which they object (like gay marriage, abortion, contraception, etc.).

So as a piece of political theater and strategy, it’s a clever move. As a legal matter, it’s also an interesting case. The fact that the plaintiff requested actual words on the cake makes it more complicated, because it implicates the baker’s free speech rights. It’s one thing to request that a baker furnish a cake that might be used to celebrate something to which the baker objects—that’s a kind of second-degree complicity argument. But requiring a baker to actually perform a speech act—writing on the cake and selling it—might be more problematic from a free speech point of view.

But what if there was no speech involved, or even no image at all? Just a customer who comes in and says “I want to order a cake to be used at my Church prayer group, where we plan to pray that God will smite anyone in a same-sex marriage or who has had an abortion. We will bless the cake and serve it in celebration of this holy purpose.” That’s a reasonable analogy to the gay couple that requests a cake for their wedding ceremony, I think, for the purposes of separating out identity from action, although it’s an imperfect one given the social and spiritual and legal significant of a marriage. But still, it’s a worthwhile foil for thinking through the argument. So does the fact that I find the prayer service purpose hateful or objectionable, or in conflict with my own principles, change its legal implications?

One argument might be that the baker’s rejection of the cake is not about religion, it’s about a secular value or politics: the baker won’t bake any homophobic cakes, no matter whether a religious person or a secular person asks. This is an interesting argument, one that Professor Caroline Corbin made in a twitter conversation we had about the case.

But if the customer tells the baker they want the (undecorated) cake for religious reasons or a religious event, like the hypothetical Church prayer group in my example above, I’m not sure that the fact that the baker has a political objection to the customer’s religious beliefs means that refusing to bake the cake isn’t arguably religious discrimination.

There’s an ongoing question in other areas of discrimination law, like Title VII’s employment discrimination protections, about whether religious discrimination means discriminating against someone because they are a member of a given religion or because they take or don’t take actions that are aligned with a given religion’s beliefs, and this situation seems to me to implicate that question.

Another interesting thought experiment is to imagine that you have an anti-marriage equality baker who is willing to bake cakes for gay customers in general, even knowing they are gay, but is not willing to bake one for a gay marriage. If that is discrimination on the basis of sexual orientation, then how do we think about a baker who would be willing to bake a cake for religious Christians in general, but just not if it is to be used at an anti-abortion or anti-marriage equality prayer service?

I’m not sure what the answer is here. But one of the things I find really interesting about this example is the way it highlights the blurry boundaries between politics and religious values. In this case the baker herself actually identifies as Christian, so in some sense it’s a conflict between two types of Christianity (the baker might be in better shape if she filed suit for an injunction from a court protecting her from the Colorado administrative process on the grounds that NOT baking a homophobic cake is part of her religious exercise).

But lets say the baker was irreligious. To her, homophobia might be a political or moral issue—but to the customer, it’s (allegedly) a religious one. People generally don’t hold religious and political views that conflict, and when people have political views about topics that religion also highlights, or vice versa, it gets pretty messy to try to distinguish between them.

To me, this is an example of why we need more thinking around the question of dignitary harms and the value of different forms of religious expression. Is a same-sex wedding the same as an anti-same-sex prayer meeting? Should it have the same legal status? The same moral weight? Does rejection of that purpose produce the same kinds of symbolic or dignitary harms? These are hard questions. We should probably have some cake.

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

Why Muslim Beard Decision Was a Boost for “Religious Liberty” Advocates

Originally posted at Religion Dispatches on January 22nd, 2015.

By Kara Loewentheil

The Supreme Court issued its opinion in Holt on Tuesday, holding that prison regulations that prevented a Muslim inmate from growing a short beard for religious reasons violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), a form of RFRA that applies to state prison inmates as long as the state facility accepts federal funds (which almost all state facilities do). There are a couple of interesting things about the opinion, which was unanimous (with two separate concurrences by Justices Ginsburg and Sotomayor).

The first, and most important, is that the opinion in Holt is further proof that the majority of the work in a RFRA or RLUIPA case is now located in the compelling interest/narrow tailoring part of the test. The initial elements (that the affected activity be a form of religious exercise, that the plaintiff be sincere in his religious motivation, and that the burden be substantial) continue to be lazy gatekeepers.

Why does that matter? The bottom line is that it leaves the answer to the question of when someone’s religious rights are being burdened mostly up to them. The government might still win a case if it’s doing the burdening for an important reason or it can’t be avoided, but Holt is yet another case in which, like it did in Hobby Lobby, the Supreme Court pays little attention to determining whether or not a regulation is actually a burden on someone’s free exercise rights. And because of the way the doctrine works, it’s harder for the government to satisfy the rest of the test once the burden has been established.

Part of that low bar is due to the fact that the opinion continues the slippage between the concepts of sincere religious belief and substantial burden that were evident in Hobby Lobby as well. The Court notes that the state has not disputed the sincerity of the prisoner’s belief that his religion requires him to grow a beard. It then turns to the substantial burden analysis, but simply states, quoting Hobby Lobby, that the policy requiring the petitioner to be clean-shaven means he must “engage in conduct that seriously violates [his] religious beliefs.” There is no discussion of why not being able to grow a beard when one believes one’s religion requires it is necessarily a substantialburden. Does it have to do with how important the plaintiff believes the requirement to be? But if that’s the case, then any burden a plaintiff claims (or at least cares enough about to litigate) would be substantial.

Please note, I’m not arguing about whether or not having a beard is a central element of Islam. And I realize that the free exercise in question need not be “central” to any religion for it to qualify for RFRA or RLUIPA protection, under current jurisprudence. What I’m trying to highlight is the erasure of a distinction between a plaintiff’s sincere belief (which is a question of fact, whether or not a court chooses to investigate it) and the question of whether a burden is substantial, which should be a question of law that is not determined by the intensity of the plaintiff’s subjective spiritual experience. Or is the severity of the punishment what determines the substantiality of the burden? The Court says the petitioner would be subject to “serious disciplinary action” but does not specify what that would entail.

Again, I’m not trying to argue that a beard is not an important part of the practice of Islam in general, or this petitioner’s particular understanding of the religion. I’m not even saying that the Court got the case wrong here; in fact, I think it’s probably the right outcome. But the fuzzy relationship between sincerity, exercise, burden and substantiality means that the pressure will continue to intensify on the compelling interest/narrow tailoring analysis to do the majority of the recognizable legal work in the analysis of RFRA and RLUIPA claims.

The second interesting item is Justice Ginsburg’s concurrence, which she uses to state that her joining the majority opinion depends on the fact that there are no third-party harms at issue in this case. In so doing, I think Justice Ginsburg is trying to remind everyone that third party harms—a Hobby Lobby employee losing reproductive health coverage as a result of her employer’s beliefs, for example—should be a relevant consideration for RFRA and RLUIPA analyses. This is particularly important because RLUIPA case law, thus far, is the case law we have on the RFRA/RLUIPA standard that actually pays attention to third party harms.

Unsurprisingly, the courts have been fairly willing to recognize third party harms when it comes to deference to a government’s decisions in the prison context (unlike when it comes to reproductive rights, as in Hobby Lobby). Justice Ginsburg’s concurrence, therefore, reads to me as an attempt to draw attention to that aspect of RLUIPA case law and to maintain its relevance, despite the fact that it didn’t do as much work as one might have hoped to protect third parties in Hobby Lobby itself.

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

3 Religious Exemption Cases To Look For In 2015

Originally posted at Religion Dispatches on December 31st, 2014.

By Kara Loewentheil.

We already know that 2014 was a big year for religious exemption cases, from the gravely serious to the immensely trivial. But what will 2015 have in store? If I were a prophet I could, of course, predict the future. But let’s just call these my top three educated guesses for the kinds of religious exemption cases we’re going to see in 2015.

1. Contraception: Total Exemption

First and foremost, we’re going to see continuing litigation over the Affordable Care Act’s contraceptive coverage requirement and the accommodation process already in place. There are some plaintiffs, both for-profit and non-profit, who will object to any accommodation at all and claim a right to a total exemption from the law; i.e., they don’t want anyone to give their employees birth control coverage in any manner that is related to their employment.

That is, if the government just wanted to give every woman in America a free-standing statutory right to contraceptive insurance coverage that would be paid for and administered by the government and would not involve your employer in any way, even as a vehicle, that might be ok with them. Maybe.

Ultimately the Supreme Court is probably going to have to consider the question of whether RFRA provides a complete exemption for those who object to any accommodation process.

2. Marriage Equality: Public Officials

2015 is also likely to be the year of suits claiming religious exemptions from participating in gay marriage solemnizations or celebrations. We’re already familiar with the example of service providers—like bakers or florists—who refuse to work with gay couples on their marriage ceremonies or parties.

But heading into 2015, as more and more states have marriage equality implemented to conform with federal court rulings, we’re likely to see a renewed effort to allow public officials to claim a religious exemption from performing gay marriages. These could take the form of lawsuits under state RFRAs, or could be legislated directly into effect, as was the case with a recent proposed bill in North Carolina.

3. Corporate Rights: Size Matters

Hobby Lobby involved a claim by a family-owned and family-operated for-profit corporation with a limited number of shareholders, all of whom shared a set of religious beliefs and values. And the majority opinion in the case was careful to assure readers that there was no reason to think that larger for-profit corporations would bring similar suits.

The only problem is, there’s no reason to think that they won’t. Imagine a publicly-owned religious products company for instance—or even just a privately-held one that has a larger and more diverse group of shareholders than were at issue in Hobby Lobby. Plenty of large corporations, even publicly-held corporations, operate in markets where discriminatory policies or actions might actually help their bottom line.

So in 2015 I suspect we’re going to see litigation fleshing out just what kinds of for-profit entities are eligible for exemptions under the federal RFRA or similar state laws, and whether Hobby Lobby provides any principled way to draw the line on size.

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

5 Silliest Religious Exemption Cases in 2014

Originally posted at Religion Dispatches on December 25th, 2014.

By Kara Loewentheil.

2014 was the year that the Religious Freedom Restoration Act (RFRA) made a comeback, and now religious exemptions are the talk of the (policy wonk) town. As Hobby Lobby emboldened those seeking religious exemptions, we saw more and more outlandish claims being advanced disguised as religious rights. Here are the top five bizarre religious exemption claims of the past year—although I’m sure 2015 will find a way top them.

  1. The nurse who told a family planning clinic she wouldn’t prescribe birth control and then sued the clinic for not hiring her. Yes, you read that right. Enough said.
  1. The woman arrested for crystal meth who claimed she needed it for her Wiccan religious practices. That’s how far we’ve come from the Native Americans who were penalized for using peyote in the landmark Smith case that brought us RFRA to begin with.
  1. The Satanic Temple’s print-and-sign web form for claiming a religious exemption to get out of having to listen to state-required biased counseling laws before obtaining an abortion. If only it were that easy.
  1. The member of a Mormon sect who claimed it would be against his religious beliefs to provide any factual information about the structure or hierarchy of his church to government officials investigating a potential violation of child labor laws by a fundamentalist sect that ran a pecan ranch. Somehow I have the feeling judges are going to be a lot less friendly to religious exemption claims should they prevent prosecutors from doing their jobs.
  1. The Kansans who continued their 2013 suit against the State Board of Education allegingthat state standards requiring that science classes teach…science…violated their religious rights by imposing a “materialistic” or “atheist” world view. Apparently they haven’t heard that even the Pope thinks you can believe in God and evolution at the same time.

Coming up next week—the top five religious exemption cases we can expect to see in 2015.

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

What Do Crystal Meth And Contraception Have In Common?

Originally posted at Religion Dispatches on November 19th, 2014.

By Kara Loewentheil.

Is meth the new peyote? A woman arrested in Oklahoma recently for possession of methamphetamine is arguing that as a Wiccan she has a religious right to possess and use the drug for her religious practice. In Smith, as you’ll remember, the plaintiffs had used peyote as part of Native American religious practices. They were out of luck under the First Amendment, but the denial of their claim led to passage of the Religious Freedom Restoration Act, after which a factually similar case involving hoasca (a.k.a. Ayahuasca) was decided in favor of the plaintiffs under RFRA’s more lenient legal standard. And now we come to Wiccans arguing for the right to use meth.

It’s a ridiculous story on one level, but it gets at a crucial fuzziness in the doctrine around these religious exemption cases: How hard judges can, and should, push on the claims of plaintiffs that a given action (or inaction) is part of their religious exercise and that the required action (or inaction) is a substantial burden on that exercise.

An opinion from the D.C. Circuit last week explored this question in a more mainstream setting. Judge Nina Pillard authored a thorough and convincing opinion in one of the cases against the contraceptive coverage requirement of the Affordable Care Act, holding that the religious non-profit organizations that object to participating in the accommodation process have no right under RFRA to refuse to comply with the relevant regulations. The opinion insightfully distinguishes between the sincerity and subjective experience of harm that a religious plaintiff might have and the legal questionof when a burden is so substantial that the law should take it into account.

Thus far in these cases judges (and Supreme Court justices, for that matter) have been too willing to assume that if a religious objector’s subjective experience of suffering caused by a legal requirement is intense, it therefore follows that the requirement imposes a substantial burden. But as Judge Pillard points out, substantial burden is a question of law, not a question of fact. In other words, judges must evaluate what constitutes a substantial burden in a legal sense, not merely the factual determination of how badly the requirement makes the religious objector feel. I’m not being flippant here, I take the dignitary claims of suffering by religious objectors seriously – but emotional harm is not equivalent to legally cognizable injury in all cases.

The Wiccan right to use meth also pushes on my other favorite whipping post, the sincerity inquiry. It seems ridiculous to us that a religion could require the use of meth, but there is nothing new about the use of intoxicating substances as a means of facilitating communion with the divine. And in a religion like Wicca, without a central authority (like the Pope, for instance), how do we determine that the use of meth is not in fact central to this particular Wiccan’s religious exercise?

I’m not suggesting we can’t determine that, but I am suggesting that if we think that’s an easy question we should be more cautious about the willingness thus far of courts to throw up their hands and refuse to probe sincerity or consistency when confronted with a plaintiff with a more mainstream religious claim.

If you’re interested in hearing more about other aspects of the D.C. Circuit’s opinion, I did a segment on Bloomberg Law Radio about it that you can find here.

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

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

Originally posted at Religion Dispatches on October 29, 2014.

By Kara Loewentheil

hitchingpost

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.

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.