All posts by Elizabeth Reiner Platt

The Latest On Zubik v. Burwell: Religious Organizations Propose A Compromise That They Themselves Would Oppose

Originally posted at Religion Dispatches

With headlines like “53 Percent Say Making Nuns Participate in Obamacare Birth Control Mandate is Unfair,” the conservative Christian press has found its angle on Zubik v. Burwell. For the rest of us, here’s a way through the legal thicket.

Two weeks ago, following oral argument in the latest challenge to the Affordable Care Act’s (ACA) contraceptive mandate, the Supreme Court issued an unusual order. Acting more like a mediator than the nation’s highest court, it asked the parties to try and find a compromise solution that would ensure employees and their families receive cost-free contraceptive coverage without a burdening the employers’ religious beliefs.

The case, Zubik v. Burwell, involves a number of religious nonprofits that object to the existing religious accommodation they receive under the ACA. The current accommodation allows religious employers that do not wish to provide birth control coverage to their employees to opt out by submitting a form to the federal government. If they do this, the government requires the nonprofit’s insurance company or third party administrator to provide separate contraceptive coverage. Religious organizations like Little Sisters of the Poor—those headline-friendly nuns—argue that even this workaround violates their religious liberty, because providing the form makes them complicit in the provision of birth control. They claim that the accommodation violates their rights under the Religious Freedom Restoration Act (RFRA), a federal statute enacted in 1993 which forbids the federal government from burdening religious exercise unless there is no less burdensome way to achieve a compelling government interest.

The Supreme Court order asked both sides to file supplemental briefing on “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

In other words, is there a way to give both sides what they want?

The religious nonprofits responded confidently in their brief, “[t]he answer to that question is clear and simple: Yes.” Unfortunately, what follows is a convoluted “no.” The alternatives put forward by the petitioners include contraceptive-only insurance plans that do not currently exist, would create significant state and federal regulatory challenges (for one, they may not be enforceable contracts under some state laws), would limit access to contraceptives—and which the organizations would in fact still oppose.

The petitioners’ brief explains that “at a minimum,” an acceptable solution would require “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy)” with “separate enrollment processes, insurance cards, payment sources, and communication streams.” Unlike the current accommodation that provides for “seamless” birth control coverage, the brief states “if the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan.”

In other words, employees would have to opt in to coverage, which the government has repeatedly explained will result in lower rates of access and use.

Acknowledging that contraceptive-only plans do not actually exist, the brief proposes that the government “require or incentivize commercial insurance companies to make separate contraceptive coverage plans.” Further, “[t]o the extent there are any concerns about the financial stability of a contraceptive-only plan that charges no premiums and cannot pass on any of its costs,” it suggests that the government subsidize the plans (never mind that Title X, a program which currently provides reproductive health care to low-income patients, is chronically underfunded). The brief dismisses other administrative and legal problems that such a system would create, in one instance simply claiming the “Court should discount any asserted concerns about financial or practical difficulties that might ensue should large numbers of petitioners’ employees opt for separate coverage.”

Here are four big problems with what they propose:

#1: no contraceptive-only insurance plans exist!

Moreover, we don’t know whether such plans could exist, whether they would conflict with state laws, or how they would be created, administered, and funded. It’s a completely unfeasible interpretation of RFRA to allow petitioners to demand a “less restrictive” alternative that could conceivably work in theory. The alternative must be one that will actually work in practice.

#2: It will impose burdens on employees and their families.

The proposed scheme would require employees to opt-in for contraceptive coverage. Throughout litigation, the government has emphasized that even seemingly minimal barriers to contraceptive coverage result in less access to and use of birth control. Further, requiring employees to opt-in to coverage would allow employees to cut off access to contraception for their covered family members.

#3: It will reduce access to contraceptive and non-contraceptive women’s health care.

Women generally receive annual care, including a pap smear, breast exam, STI testing and treatment, blood pressure test, and contraceptive counseling, from the same doctor during the same appointment. This makes the idea of a “contraception only” plan very different from other services like dental or vision plans—contraception is an integral part of women’s health care. By requiring employees to find doctors who accept each of their two plans, and then schedule two different appointments, the petitioner’s suggestion essentially doubles the barriers to accessing necessary healthcare. This may not seem like a hefty burden, but for women balancing childcare and low-wage jobs, and who may have limited paid sick time, it is significant.

#4: The religious nonprofits would oppose their own plan.

After laying out a supposed less restrictive alternative, the petitioners’ brief adds “[t]o be clear, that is not to say that petitioners endorse such an approach as a policy matter.” It notes that many of the nonprofits believe contraception to be “immoral,” and therefore “may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else.” Moreover, the brief states that “petitioners certainly have the right, protected by the First Amendment, to make that disagreement known.”

What this means is that while petitioners are suggesting that the government adopt entirely new laws and regulations regarding contraceptive coverage, and allocate additional funding for contraception, they will nevertheless continue to lobby (and perhaps litigate) against these very actions.

Requiring the government to come up with an entirely new legal and regulatory alternative any time it places a substantial burden on religion—regardless of political, legal, or administrative feasibility, cost, or potential impact on third parties—is a scary prospect. This is especially true considering the weak “substantial burden” test the Court adopted in Hobby Lobby, which defers almost entirely to the religious objectors’ assessment of whether they have been burdened. Such an immoderate interpretation of RFRA would give religious objectors the power to upend complex laws and programs that are created to benefit the public at large.

Let’s say, for example, a company like Hobby Lobby had a religious objection to minimum wage laws. Under the petitioner’s argument, a less restrictive way for the government to achieve its goal of guaranteeing a living wage would be to allow the company to pay subpar wages and pass a new law allocating funds to pick up the remaining tab. A religious objection to environmental regulations? Pollute away and suggest that the government create, fund, and administer a new program to clean up the mess. A religious objection to posting OSHA notifications? Tell the government to hire workers to chase down the company’s employees and warn them about environmental hazards they may face at work.

All of these solutions would certainly be less burdensome on the employer. They also happen to be expensive, inefficient, impractical, and bordering on absurd. Moreover, they are likely to create financial and administrative burdens not just for the government, but for the company’s employees and the public. And since they are merely suggestions for less restrictive alternatives rather than mandates, Congress could decide that passing a new law is simply not worth the trouble.

The petitioner’s proposed plan is not a less restrictive alternative. It’s a less restrictive fantasy, and turns RFRA’s balancing test into a trump card for religious believers.

Constitutional Amendment SJR 39 Could Immunize Religiously-Motivated Crimes From Prosecution

Link to Document/Text here:

Media Contacts:

Elizabeth Reiner Platt
Associate Director
Public Rights/Private Conscience Project

Elizabeth Sepper
Associate Professor
Washington University School of Law

April 18, 2016

The Public Rights/Private Conscience Project at Columbia Law School issued a statement today adding to its earlier memorandum on Missouri’s Senate Joint Resolution 39, a proposed amendment to the state constitution. The statement posits that SJR 39 would prevent Missouri and its municipalities from prosecuting crimes, including trespass, harassment, or assault, that are motivated by a religious belief concerning marriage between same-sex couples.

SJR 39 would prohibit the state and local governments from imposing a “penalty” on many religious individuals and organizations for acts motivated by their “sincere religious belief concerning marriage between two persons of the same sex.” Missouri law routinely employs the term “penalty” to mean both criminal punishments and civil fines or actions. The amendment would therefore pose a barrier to prosecuting certain religiously-motivated criminal conduct.

For example, the amendment could immunize from prosecution members of the Westboro Baptist Church, a religious organization, if they violated state trespass laws and entered a private chapel or home in order to protest the wedding of a same-sex couple. It could also protect Church members from prosecution if they harassed or even physically assaulted the couple or their guests.

“Not only does SJR 39 attack the equality and dignity rights of LGBT Missourians and supporters of marriage equality” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it also puts them at risk of physical harm.” Elizabeth Sepper, Associate Professor at Washington University School of Law in St. Louis, said SJR 39 “allows the religious preferences of a few to trump not only other individual rights, but also important governmental interests in public safety and impartial enforcement of the law.”

The statement also summarizes other arguments made in the longer memorandum, which maintains that SJR 39 violates the Establishment Clause of the First Amendment.

Read the statement here.

Missouri Law Professors Maintain Constitutional Amendment SJR 39 Would Violate the Establishment Clause

Link to Document/Text here:

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project

April 12, 2016

Fifteen law professors, most from universities in Missouri, issued a memorandum today arguing that Missouri’s Senate Joint Resolution 39, which would amend the Missouri constitution to create new and very broad religious liberty rights, is unconstitutional. The Missouri House Committee on Emerging Issues has scheduled a hearing on SJR 39 for this afternoon.

SJR 39 would give many religious organizations, individuals, for-profit entities, and state workers the right to violate municipal antidiscrimination ordinances and contractual obligations that conflict with their “sincere religious belief concerning marriage between two persons of the same sex.”

The amendment would protect a wide range of discrimination in employment, housing, public accommodations, and government services against same-sex couples and supporters of marriage equality. For example, the amendment would allow:

  • A religious hospital to violate a “good cause” provision in a collective bargaining agreement and fire a nurse who expresses support for marriage equality;
  • An adoption agency that has a contract with the city of St. Louis to violate that city’s antidiscrimination ordinance and refuse to work with same-sex couples;
  • A private restaurant chain to break a contract to cater a wedding when it learns that the couple is of the same sex; and
  • A judge to ignore the U.S. Supreme Court and the Missouri Code of Judicial Conduct and refuse to marry a same-sex couple.

The memo, which was spearheaded by the Public Rights/Private Conscience Project at Columbia Law School, concludes that SJR 39 violates the Establishment Clause of the First Amendment by accommodating religion in a way that meaningfully harms other Missourians. It was signed by professors from Washington University in St. Louis, University of Missouri-Kansas City, and Saint Louis University School of Law.

“SJR 39 does not just disrupt the careful balance between religious and secular rights enshrined in the Constitution,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it’s also unconstitutionally vague. It’s impossible to predict the range of otherwise prohibited behavior that would be given absolute immunity under this amendment.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said SJR 39 “is not about religious freedom, which is already very well-protected by the robust liberty of conscience provision of the Missouri Constitution. It merely codifies a right to discriminate.”

Read the memorandum here.

Law Professors Condemn Mississippi and Georgia Religious Liberty Laws as Unconstitutional Over-Reaching

Read the Mississippi Memorandum here:

 the Georgia Memorandum here:

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project

April 5, 2016—More than a dozen law professors with expertise in constitutional and civil rights law have signed memoranda published by the Public Rights/Private Conscience Project at Columbia Law School that analyze two so-called “religious liberty” bills recently passed in Mississippi and Georgia.

Mississippi’s bill, HB 1523, was signed into law today by Governor Phil Bryant. The Project’s analysis concludes that HB 1523 is among the broadest religious accommodation bills to be passed by any state legislature. It builds into state law unconstitutional exemptions for particular religious views on marriage, sexual relations, workplace sex equality, and gender identity. Under HB 1523, religious organizations, individuals, for-profit entities, and even government workers are granted the right to discriminate against a broad range of Mississippians in a variety of contexts including housing, employment, public services, education, and adoption.

Even worse, it prohibits the government from withdrawing grants or contracts from organizations that discriminate, and could therefore lead to the use of taxpayer funds to sponsor religiously-motivated discrimination.

The memoranda, which outline both bills’ constitutional and policy flaws, were signed by a total of 19 law professors from schools including the University of Mississippi School of Law, Mississippi College of Law, Emory University, Atlanta’s John Marshall School of Law, Mercer University School of Law.

“HB 1523 is a solution in search of a problem, as religious belief and practice already receive strong protection under state and federal law,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law. “Rather than strengthening religious liberty protections, the bill radically overreaches by favoring religious believers at the expense of other private citizens.  This amounts to a violation on the First Amendment’s Establishment Clause.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said that the bills “are representative of wave of legislation that has cloaked resistance to LGBT rights, and especially the Supreme Court’s Obergefell v. Hodges decision, as a movement for religious freedom.”

Like HB 1523, Georgia’s HB 757 would have condoned and encouraged both public and private discrimination. Governor Nathan Deal has promised to veto the bill.

While the memos’ signatories have a range of views on the appropriate balance between religious and secular rights, in the words of Governor Deal they “do not think we have to discriminate against anyone to protect the faith-based community.”

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.

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.