Category Archives: Hobby Lobby

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

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

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

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

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

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

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

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

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

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

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

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.

Religious Freedom for Refugees? Not So Fast…

By Elizabeth Platt, Associate Director, Public Rights/Private Conscience Project

Mere months after a host of prominent conservatives condemned the Supreme Court’s marriage equality ruling as an attack on religious freedom (one particularly colorful character called it “judicial tyranny” that would lead to the criminalization of Christianity), these same politicians seem to have had a change of heart. Not on marriage equality, of course, but on the importance of religious freedom in American society.

From shutting down mosques to barring Muslims from the oval office to demanding a Christianity test for Syrian refugees to the outrageous (albeit unclear) suggestion of creating Muslim registration system, conservatives seem to be caught in a vicious cycle of Islamophobic one-upmanship. The very same voices who clamored for new religious exemption laws and even held rallies for religious freedom featuring “special guests victimized by government persecution,” seem to be leading the charge against Muslims both at home and abroad.

Lest one think these arguments have been taken up only among the most extreme on the right, even the relatively moderate Jeb Bush argued recently that “we should focus our efforts as it relates to refugees on the Christians that are being slaughtered.” And more than half the nation’s Governors are doing all they can to prevent Syrian refugees from being placed in their state.

Perhaps the most explicitly discriminatory suggestion has come from Ted Cruz—host of the aforementioned rally for religious freedom. Rather than Bush’s suggestion of prioritizing Christian refugees, Cruz has stated that only Christians should be permitted to enter the U.S., and Muslim refugees should be kept out, period.

Unsurprisingly, Cruz has not offered a plan on how to determine which refugees are in fact Christian. Bush suggested putting the burden of proof on the refugees themselves— “I mean, you can prove you’re a Christian,” he explained.

In the past, however, conservatives haven’t been so keen on government-imposed tests of religious faith. Hobby Lobby and other religious exemption cases brought under the Religious Freedom Restoration Act (RFRA) require the party requesting an accommodation to demonstrate a substantial burden on their sincerely held religious belief. Conservatives have argued that this should be an extremely weak test—contending that courts have no authority, or ability, to inquire into the sincerity of a religious belief, or to evaluate how closely it correlates with official religious doctrines. So if the Supreme Court shouldn’t be able to question the religious beliefs of a craft store owner, why do conservatives want State Department or Department of Homeland Security agents deciding whether someone is Christian?

The recent calls for explicit religious discrimination and persecution against Muslims by major political leaders are chilling. They also belie any claims that these politicians are honestly concerned with religious freedom. Rather, they are interested in religious rights only for those who share their views on hot-button political issues like abortion, contraception, and LGBT rights.

For those who disagree… hope you enjoyed the holiday and escaped the stealth halal turkeys.