Category Archives: State RFRAs

EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

Press Release:
March 23, 2017

From:
Columbia Law School, The Public Rights/Private Conscience Project

Subject:
EEOC Proposed Guidance Shows We Can Protect Religious Freedom & LGBTQ Rights

Contact:
Liz Boylan, eboyla@law.columbia.edu, 212.854.0167

March 23, 2017: While the President and Congress consider acts to expand religious exemptions at the expense of LGBTQ and other rights, a proposed federal regulation demonstrates that we can—and should—protect both religious and LGBTQ communities. The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School submitted commentary this week commending the Equal Employment Opportunity Commission (EEOC) on their “Proposed Enforcement Guidance on Unlawful Harassment,” which protects the right of religious employees to discuss their beliefs while prohibiting religiously-motivated harassment in the workplace.

Professor Katherine Franke, Faculty Director for the PRPCP commented, “At a time when we are witnessing government officials engaging in both troubling violations of the Establishment Clause and blatant forms of religion-based discrimination, the EEOC’s proposed guidelines offer a reasoned and careful way to harmonize religious liberty and equality in the workplace.”

Elizabeth Reiner Platt, Director of the PRPCP elaborates, “The proposed guidelines respect both the right to express one’s religious beliefs and the right to a safe and productive work environment. This kind of carefully tailored religious accommodation protects all workers from discrimination.”

The PRPCP’s letter notes that nearly one in three transgender workers, and up to 43% of gay, lesbian, and bisexual people, have faced employment discrimination. The proposed EEOC guidelines “appropriately explain that Title VII’s duty to accommodate religion does not amount to an official sanctioning of religiously-motivated harassment-including against LGBTQ employees, who already face pervasive discrimination in the workplace.”

The EEOC’s responsibility to protect religious minorities and LGBTQ persons is of critical importance, as the Trump Administration continues to issue Executive Orders that roll back LGBTQ protections and express disapproval of Muslims. Of particular concern is a potential Executive Order on Religious Freedom. If signed, the order could provide a special license for those holding certain conservative religious beliefs— including opposition to same-sex marriage, sex outside different-sex marriage, and abortion—to violate any regulations that conflict with these beliefs.

The PRPCP’s mission is to address contexts in which religious liberty rights conflict with or undermine fundamental rights to equality and liberty through academic legal analysis.  PRPCP approaches the developing law of religion in a manner that respects the importance of religious liberty while recognizing the ways in which broad religious accommodations may violate the First Amendment’s Establishment Clause, which, “not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.”[1]

Read the full letter from the PRPCP here: http://tinyurl.com/PRPCP-Columbia-EEOC-Letter

For more information on the PRPCP, visit the PRPCP’s webpage, here: http://tinyurl.com/PRPCP-Columbia

The EEOC’s Proposed Enforcement Guidance on Unlawful Harassment is available here: https://www.regulations.gov/document?D=EEOC-2016-0009-0001

________________________________

[1] https://www.law.cornell.edu/wex/establishment_clause

WA Supreme Court: LGBT Discrimination No More About Flowers than Civil Rights Were About Sandwiches

Originally posted at Religion Dispatches, February 22, 2017

Last Thursday, the Washington Supreme Court issued a significant and unanimous decision in the ongoing dispute—being litigated in courts across the country—over whether antidiscrimination law must yield to the religious beliefs of business owners opposed to marriage equality. The case involved a florist, Barronelle Stutzman, who refused to provide floral arrangements for a wedding between same-sex partners because of her deeply held religious beliefs about marriage.

In prior cases including Elane Photography, LLC v. Willock and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, courts have come down against business owners who refuse to provide goods and services for weddings between same-sex couples. Opinions in these cases have found that antidiscrimination laws are neutral, generally applicable measures that do not favor secularism over religion, or single out particular religious groups for ill treatment. The right-wing legal nonprofit Alliance Defending Freedom represented the business owners in both of those suits, and is currently representing Stutzman, who says she plans to appeal Thursday’s decision to the U.S. Supreme Court.

The opinions in Elane Photography and Masterpiece Cakeshop have declined to analyze the application of LGBT antidiscrimination laws to religious objectors using the rigorous “strict scrutiny” test. This test, used to evaluate government actions that specifically disadvantage religion, requires a law to be the least restrictive (to the religious objector) means of achieving a “compelling” government interest.

In this latest opinion, State of Washington v. Arlene’s Flowers, the court did subject Washington’s antidiscrimination law to the strict scrutiny test. They did so because the free exercise provision of Washington’s state constitution has been interpreted to be more protective of religion than the federal First Amendment, raising the possibility that the lower level of scrutiny required under the federal Free Exercise Clause may be insufficient.

While the court declined to hold that the strict scrutiny test was necessary when evaluating neutral laws under the Washington constitution, it found that applying antidiscrimination law to religious objectors satisfied even this demanding test. Importantly, the court recognized that providing exemptions for religious objectors was inherently inconsistent with the entire purpose of antidiscrimination law.

Stutzman had argued that applying the law to her could not be necessary to achieving any compelling government interest, since there was no “access problem.” In other words—since the couple could purchase flowers elsewhere, application of antidiscrimination law in this case served no purpose. In response, the court held:

We emphatically reject this argument…”[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches.” Br. of Resp’ts Ingersoll and Freed at 32. As every other court to address the question has concluded, public accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

This statement strikes at the heart of the dispute between religious objectors and LGBT couples and families. Too often, the vital role that antidiscrimination law plays in establishing the equal place of long-subordinated groups in civil society gets lost or ignored in claims that focus on the availability of flowers or cake. Efforts to limit the scope of antidiscrimination law will not stop at wedding-related services (and, indeed, a federal judge ruled last summer that the religious beliefs of a funeral home owner justified his discrimination against a transgender employee). Washington’s opinion is clear on the real purpose of these laws: guaranteeing equality, not roses.

PRPCP’s Testimony on Pennsylvania SB1306: No Additional Protections for Religious Freedom Are Necessary if State Adds Sexual Orientation and Gender Identity to Its Human Relations Law

Professor Katherine Franke, Faculty Director for the Public Rights/Private Conscience Project, was invited to testify before the Pennsylvania Senate’s Labor and Industry Committee on the need to include greater protections for religious liberty in a bill that would add Sexual Orientation and Gender Identity to Its Human Relations Law. She argues that current language contained in Pennsylvania’s Human Relations Act, the U.S. and Pennsylvania Constitutions, and Pennsylvania’s Religious Freedom Protection Act, provide robust protections for the religious liberty rights of faith-based employers, and as such no additional language is needed in SB 1306 to protect employers’ rights to the free exercise of religion.

Indeed, some of the language contained in amendments to companion bills previously pending before the Pennsylvania legislature risks building into the Commonwealth’s Human Relations Act an overly-solicitous accommodation of religious preferences in a manner that could create a violation of the Establishment Clause. An additional accommodation of religious belief, such as that contained in A08770 offered to SB 1307 in the Senate Housing and Urban Affairs Committee, “A08770,” is therefore unnecessary and, moreover, risks unsettling a well-considered balance set by the Pennsylvania legislature and courts between religious liberty and other equally fundamental rights. By creating a religious accommodation that would meaningfully harm other Pennsylvanians, A08770 conflicts with established First Amendment doctrine.

Read the testimony here.

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.

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

Link to Document/Text here:
http://bit.ly/1TOUnSu

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

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:
http://bit.ly/1SNYHiz

Read
 the Georgia Memorandum here:
http://bit.ly/1pGlmmO

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

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.

Public Rights/Private Conscience Project Pens Letter Analyzing Proposed Indiana Religious Liberty Law

statehouseUpon the request of a member of the Indiana legislature, Columbia Law Professor Katherine Franke crafted an analysis of the proposed “Religious Freedom Restoration Act” bills pending before the Indiana legislature.  The letter gained thirty signatures, many who are law professors at Indiana University and provided careful analysis of the bills in light of Indiana and federal religious liberty law .  The analysis stresses that:

  1. Religious freedom is a fundamental American value enshrined in the Indiana Constitution. But the proposed legislation could undermine those values and result in harmful consequences.
  2. The proposed Indiana RFRA would unsettle a well–reasoned harmony struck by Indian courts between rights to religious liberty and other fundamental rights – as such, this is not a modest proposal but instead could have radical consequences and will unleash a wave of litigation.
  3. Such harmful consequences could include employers, landlords, and corporations taking the law into their own hands and arguing that their religious beliefs allow them to avoid complying with laws that apply to everyone else.  This will likely result in a flood of lawsuits.
  4. The right to religious liberty, like most fundamental rights, is not absolute.  The law is very clear that religious liberty rights secured under state RFRAs or under the Indiana or U.S. Constitutions cannot be secured by shifting material costs to third party rights-holders.  The proposed legislation should not be enacted because it does not limit the scope of religious liberty rights in cases where they undermine other important rights to public health, equality, or security.
    • For instance, when a state police officer sought an exemption from working as a riverboat gaming agent because he had a religious objection to gambling, an Indiana court rejected this challenge, the Indiana Court of Appeals noted that, “law enforcement agencies need the cooperation of all members…Firefighters must extinguish all fires, even those in places of worship that the firefighter regards as heretical.”
    • In a Supreme Court case, an Amish employer challenged on religious grounds the requirement to pay Social Security taxes on behalf of his employees. The court rejected the exemption, noting the harm it would impose on others.
  5. Some supporters of the proposed RFRA have argued incorrectly that the language of the proposed Indiana RFRA is the same as the federal RFRA and as such the Indiana law should gain bipartisan support, just as the federal RFRA did in 1993.
  6. In fact, many original supporters of the federal RFRA, including members of Congress who voted for the law and advocates who supported it, have withdrawn their support for the federal RFRA because it has been interpreted and applied in ways they did not expect at the time they lent their endorsement to the law.

The letter is available here.