All posts by Kara Loewentheil

Will SCOTUS Call the “Bluff” of Religious Liberty Activists?

Originally posted at Religion Dispatches on November 9, 2015.

By Kara Loewentheil

If the announcement that the Supreme Court will hear arguments in a challenge to the Affordable Care Act’s contraceptive coverage requirement (CCR) makes you feel like you’re experiencing deja vu, you’re not exactly wrong.

After Hobby Lobby, the Administration took a slow and leisurely approach to creating new regulations for the accommodation process. Finally released in July, the regulations, among other things, instituted a process for those non-profit religious organizations (NPRO) that objected to the original accommodation.

Under the revised accommodation process, the NPROs do not have to directly inform their insurance provider or third-party administrator (meaning an entity that administers their insurance plan even if the organization pays for it themselves, which is called being “self-insured”) of their objection.

Instead the NRPO can inform the government, and the government will inform the insurance company or the TPA, which then has to provide the contraceptive coverage itself. (That is, unless the TPA is actually exempt, like the TPAs that are a form of an insurance plan called a “church plan”—the federal government lacks the ability to regulate those plans under ERISA and cannot require them to provide the coverage.)

If that seems silly—well, on some level, it kind of is. And here’s why: Inserting the government into the communication process was meant to address the complaint by some NPROs that even informing their insurance company or TPA of their objection to contraception made them complicit in the eventual provision of contraceptive coverage to their employees.

But it was never clear why an NPRO that objected to informing their insurance company or TPA was going to feel just dandy about informing the government so the government could inform the insurance company or the TPA.

In fact, of course, they didn’t—instead, various NPROs that had objected to the original form of the accommodation continued to object to the revised form of the accommodation. Until recently all the circuit courts to consider these claims had ruled against them, but then the 8th Circuit upheld a grant of preliminary relief in one of these cases, and now here we are, with the Supreme Court granting cert to several of the consolidated cases to consider a variety of questions involving NPROs’ objections to contraceptive coverage and RFRA’s requirements.

At bottom though, the question is fairly simple: Is the Supreme Court going to call the objectors’ bluff? I don’t say “bluff” because I think the NPROs are insincere—it’s not about their sincerity at this point. But the “bluff” in all of these developments is that there even exists some way of providing contraceptive coverage that the objecting NPROs would find acceptable.

And it’s been clear for a while now that the only solutions they would find acceptable are factually impossible outcomes in our current system: e.g., single-payer health care, or a government-funded birth control insurance program. Of course those are outcomes that the same organizations would be lobbying heavily against if they were proposed to Congress!

What’s really at issue here is whether the Supreme Court is going to allow religious objectors to completely opt-out of laws by continually re-defining the burden on their religious exercise, regardless of the impact on third parties and the harms done to them. And you can bet if that strategy succeeds here, we’ll see it in use very soon in other contexts, like exemptions to LGBT non-discrimination laws and marriage equality protections. Let’s hope it doesn’t come to that.



It’s Not the Thought that Counts: Tragic Case Highlights Flaws in “Religious Liberty” Debate

Originally posted at Religion Dispatches on October 20, 2015.

By Kara Loewentheil

We hear a lot about the ways that religious exemptions impact the divisive cultural issues of our day—like abortion, marriage equality, and increasingly basic vaccinations. But the resistance to science of some fundamentalist religious sects is not limited to these hot topics.

In Oregon in 2011, a married couple, members of the Followers of Christ Church, were sentenced to prison because they didn’t seek medical help for their prematurely born infant despite the baby’s obvious illness and distress.

The parents appealed their conviction on the grounds that because their failure to seek medical care was based on their religious beliefs, the State should have to prove that they had knowledge that that illegal result (their baby’s death) would happen as a consequence of their failure to act. Last week, the Oregon Supreme Court rejected their claim, holding that their religious motivation was irrelevant when it came to proving the requirement elements of the crime.

This seems like a just and reasonable result. But in fact, in a majority of states, parents who cause harm to their children by not providing necessary medical care are protected from criminal liability if their failure to do so is religiously-motivated. Which perhaps should not surprise us because this story is really just a more extreme version of the vaccination situation, in which a refusal to vaccinate a child for religious reasons may subject the child—and other children or immune-compromised people—to harm.

It’s a very strange concept when you think about it. We criminalize child neglect because of the harm it causes to the children, not because we want to punish people for having the desire or intent to neglect their children, regardless of the outcome. So if the neglect happens, and the harm results, why should the religious motivation have any bearing on the punishment?

That’s an oddity that gets to the heart of what is peculiar about religious exemptions in general. In many cases, it’s a request to be allowed to cause harm to innocent third parties—sometimes third parties who have no way to escape the harm—because your reason is religious in nature.

There are certainly crimes where intent matters—you can’t prove murder (versus manslaughter or negligence, for instance) without proving the intent to murder. We want to distinguish between accidents and intentional bad acts.

But religious exemptions aren’t actually a question of intention—and in fact with negligence, it may be that the non-religious negligent parent had no intention, and just acted out of laziness or a lack of care, whereas the religious parent made an intentional choice to take the action that produced harm. Exempting the parent in that case is the opposite of how we normally proceed when we can prove there was an intention to take the action that caused the harm, if the harm could reasonably have been predicted (which is certainly the case when you have a premature infant who is in physical distress and you don’t seek medical care).

This is why the emphasis on third-party harms in religious exemption doctrine is so important. Because going by intention as the guide to when an exemption should be allowed produces normatively undesirable results; but focusing on whether harm has been caused to third parties allows us to keep a stable set of priorities when evaluating claims for religious exemptions in the first place.

We Shouldn’t Be Surprised Francis Met With Kim Davis

Originally posted at Religion Dispatches on October 1, 2015.

By Kara Loewentheil


When Pope Francis came to New York last week traffic came to a standstill. But traffic on social media was brisk, with many of my friends from the social justice world celebrating the Pope’s “liberal” (read: barely modern and centrist in the overall scheme of things) take on hot-button domestic issues. The Pope believes in climate change! He cares if people are starving! He’s willing to let priests forgive women for abortions, at least for a single year of “mercy” (normally, you see, abortion is such a grave sin that a bishop has to be entreated for forgiveness).

And then the news leaked that the Pope had met with Kim Davis, and suddenly all that changed: My Facebook feed was filled with anger, vitriol, and even a sense of betrayal that the Pope was supporting religious exemptions.

Now on one level, this just seems bizarre. Of course the Pope supports religious exemptions. He’s the POPE. The US Conference of Catholic Bishops pays fancy lobbyists every year to push for broad readings of religious exemptions laws. And who’s their boss? The Pope. Many of the non-profit organizations objecting to even signing the form to take advantage of the accommodation from the Affordable Care Act’s contraceptive coverage requirement are Catholic organizations. So why is it so surprising that the Pope would support Kim Davis and her attempt to claim a religious exemption to performing same-sex marriages—or even appearing to validate them in her official capacity?

I think the answer is that this strange disjunct is a result of the enormously divided and recalcitrant split between America’s political parties. This Pope believes in global warming, he clearly cares about the poor and disenfranchised, he seems to genuinely be committed to humility and relieving the suffering of his flock. And in America, if you believe in the science of climate change, truly care about poverty, and want amnesty for undocumented immigrants, you’re a liberal. In fact, liberals have adopted this Pope as their mascot so ardently that last week my social media feeds were filled with people reposting the fake quote in the picture below. It appeals to social-justice oriented American liberals because it echoes their beliefs.


Hence the betrayal when the Pope met with Kim Davis and encouraged her to continue her martyrdom. Liberals felt let down and deceived, as though the Pope had misled them about his politics.

But in fact it’s a strange and artificial aspect of American politics—not the Pope’s politics—that understands concern for the disenfranchised and the marginalized to be incompatible with a deeply conservative view of religion’s place in the secular world and a commitment to a paramount religious authority.

In America, conservatives want broad religious exemptions, tax breaks and policies that clearly benefit the wealthy, and border control. But those ideas aren’t necessarily related; they’re just an accidental cluster created by various political dynamics that are, globally-speaking, regional.

This matters because the Pope is not a liberal. If you’re a liberal, the Pope is not your friend (unless you’re Kim Davis). The Pope’s celebrity has somehow, in the American liberal imagination, separated him from the politics of his institutions to the extent that while people realize that the US Conference of Catholic Bishops opposes any regulation of religious exemptions, they remain surprised to see the Pope take that same position. Many people were sharing the fake quote pictured above; no one was sharing the fact that after the Pope made much milder comments in a 2013 homily that seemed to suggest openness to non-believers, the Vatican rushed to clarify that those who are aware of the Church need to “enter” her to find salvation.

Now, I’m all for a feel-good Facebook meme. And there are certainly things about Pope Francis that are refreshing compared to his predecessor. But it’s dangerous to gloss over the deeply conservative nature of the Catholic Church, or to assume that because the Pope believes in (some) science or lifts up some of the Church’s longstanding teachings on poverty it means the Church is entering the modern era of progressive politics.

Contrary to the argument I often hear when I raise these points, I’m not persuaded that it’s “important” for us to lavish the Pope with accolades and adoration for being, in so many words, not as terrible a Pope as the last one. The Pope doesn’t need our support. He’s got the biggest constituency in the world, and it’s provincial of us to think that the approval of American liberals is somehow going to help guide him over to “our side.” The Catholic Church is a deeply culturally conservative institution with a global reach, and its politics have not proven malleable on the core culture-war issues of our day—in other words, the full legal and political equality of LGBT individuals and women.

And don’t even get me started on the idea that only a Bishop can normally pardon an abortion. That’s a whole other post.

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

PRPCP Leads 60+ Law Professors In Submitting Comments On ACA Contraception Accommodation


Image c/o TV by the Numbers

By Kara Loewentheil

Back in August the Obama Administration responded to the Supreme Court’s opinion in Hobby Lobby and its order in Wheaton College by issuing two new sets of regulations to govern the accommodation process for employers with religious objections to the Affordable Care Act’s contraceptive coverage requirement. One was an interim final regulation, promulgated by the Department of Labor, that responded to the Wheaton College order by allowing objecting non-profit organizations that believed notifying their insurance company or third-party administrator (TPA) of their objection was also a violation of their RFRA rights to simply notify the government directly, after which DOL and HHS would work together to notify the insurance company or TPA. (I’ve written elsewhere about why this is, not to put too fine a point on it, a somewhat pointless exercise). The other was a proposed regulation that would define what kinds of for-profit entities could seek an accommodation under RFRA based on the Hobby Lobby ruling.

These regulations were open for public comments, and PRPCP drafted comments on both rules that were signed by more than  60 prominent legal academics. Along with more than 40 corporate law scholars, we argued that “[t]he Supreme Court’s approach to corporate religious rights in Hobby Lobby was associational in nature: for-profit entities have religious rights because they are a collection of individuals with religious rights. In that sense the entity is merely the vehicle through which a group of individuals with religious rights exercises those rights in a collective manner.” Given that, we urged the Department to only allow for-profit entities that (1) were privately-held and limited to a certain size, (2) could produce evidence of their religious operating mission, and (3)produced evidence of a unanimous owner agreement to seek the accommodation annually.

In addition, along with more than 20 important scholars of law and religion, we submitted comments urging both HHS and DOL to create stringent monitoring and enforcement standards in order to avoid Establishment Clause violations. As we explained in our comments, “[s]tatutes like RFRA may exempt religious actors beyond what is constitutionally required, but only if they do not offend superior rights found in the Constitution. The Establishment Clause can be violated when . . . accommodations shift the burden of a religious observance from those who practice the religion to those who do not.” Because the accommodation process has the potential to impose burdens on affected employees – like delays or gaps in coverage – it is essential that the accommodation process truly be seamless. Otherwise there will only be more lawsuits ahead.

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



Code of Silence: RFRA Protects Religious Refusal To Testify

Image c/o The Penultimate Word

One of the problems with the Supreme Court’s interpretation of RFRA in Burwell v. Hobby Lobby Stores is that it allowed for such a capacious interpretation of the statute’s standards that it was inevitable that the opinion would be taken to stand for much broader principles than those at issue in the actual controversy it decided. Now, a few months later, we can see the fruits of that interpretation beginning to ripen – and even to rot.

Most recently, earlier this week, a federal district court in Utah released an opinion in the case of a fundamentalist Mormon who had been subpoenaed by US Department of Labor as part of an investigation into whether the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS) had violated child labor laws by illegally using child labor during a pecan harvest at a ranch in Utah. The defendant refused to answer the questions asked of him on the grounds that disclosing any information about the inner workings, authorities, or structure of the FLDS church violated his free exercise rights. The court held that it would not question the assertion that “the identity of FLDS Church leaders, the organization of the FLDS Church, and its internal affairs are sacred matters, designated so by God, and that he has vowed or covenanted not to discuss sacred matters.” Note, we’re not talking about disclosure of doctrine or sacred rituals. We’re talking about factual answers to factual questions, like “who is in charge of your church?”

This is a striking ruling. If a religious believer can claim a free exercise right not to answer questions about his religious institution, including who leads it, government attempts to investigate wrongdoing by religious sects or institutions could be completely stymied. Assessing responsibility for illegal actions will often require knowing who in an organization has the power to make decisions, set policy, or give orders, and who is in turn responsible for carrying them out. If members of the religious organization can choose not to answer such questions, investigators will be faced with a religious version of the infamous blue code of silence.

The court’s interpretation of the narrow tailoring test does not offer much solace either. The court held that the government’s attempt to enforce the subpoena was not narrowly tailored because the government could try to get the information from other sources (which it seems, from the opinion, it had already attempted to do, unsuccessfully). Would this mean that the government could be compelled to attempt to obtain information about a religious institution from every single member, one by one, until they found one who did not invoke the free exercise clause in order to refuse to answer the questions? That sounds absurd, but at what point would this court have found that the government had no other least restrictive alternative than enforcing the subpoena? How does this numbers game work?

I don’t have the answers to these questions, but I think they are important ones. To the extent that any sincerely held religious belief is coming to stand in for the notion of “free exercise,” we are going to see a drastic expansion of the kind of activities (like providing factual information about who heads a church) that are designated free exercise, and to the extent that the narrow tailoring inquiry operates at a hypothetical level that does not take practical considerations into account, we are going to see fewer and fewer situations in which the government can vindicate its interests in the face of a RFRA objection.

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