Rebuffed by Republican Legislators, Bobby Jindal Issues Executive Order on 'Religious Liberty'

In a Republican presidential field crowded with far-right candidates, Louisiana Gov. Bobby Jindal is trying to distinguish himself as the far-rightest candidate, especially on issues relating to marriage equality and its supposed threat to the religious freedom of conservative Christians.

Jindal’s latest came at the end of the day on Tuesday. Unwilling to accept the legislature’s failure to pass a so-called “religious liberty” bill (it was voted down 10-2 in a House committee), Jindal issued an executive order designed to protect any person who “acts in accordance with a religious belief that marriage is between one man and one woman.” The order explicitly defines “person” to include for-profit corporations and well as nonprofit organizations.

Jindal has adopted the rhetorical strategy promoted by the National Organization for Marriage and other opponents of LGTB equality: try to turn conversation about anti-gay discrimination “on its head” by declaring that laws protecting gay people are actually a form of discrimination against Christians. His statement about the executive order said it was designed to “prevent the state from discriminating against persons or entities with deeply held religious beliefs that marriage is between one man and one woman.”

Jindal’s order invokes the Supreme Court’s decision in Hobby Lobby, making it the latest sign that the decision – which granted corporations a right to claim legal exemptions based on the religious beliefs of company owners -- poses a threat to nondiscrimination measures and potentially a wide range of laws protecting the interests of workers. Jindal declared that his order is “not about discrimination,” even though its clear intent is to give legal cover to companies, government officials, and others who discriminate against same-sex couples.

Louisiana does not currently give legal recognition to same-sex couples, but Jindal is concerned that the state’s ban on marriage equality may soon be struck down by the Supreme Court, a potential ruling which his order seems to be a legally questionable effort to pre-empt. Jindal should be asked to clarify exactly what actions his legislation is designed to “protect”: a courthouse clerk who refuses to process marriage license paperwork? Religious schools getting tax dollars under Jindal’s education policy refusing to accept children of gay parents? Catholic hospitals refusing to recognize the spousal or parental rights of gay couples during medical emergencies?   

Jindal’s “religious liberty” bill had been opposed by business and tourism leaders as well as civil rights groups. The New Orleans Times Picayune reports that the New Orleans Convention and Visitors Bureau CEO Stephen Perry had called the bill “a radioactive, poisonous message.”

But Jindal’s primary audience is no longer his Louisiana constituents; it's right-wing activists nationwide. Jindal boasted about the executive order by stopping by the radio program hosted by Family Research Council President Tony Perkins, an anti-gay activist who once suggested that LGBT non-discrimination measures would lead to the Holocaust perpetrated against Christians.

Right-wing pundit and Iowa GOP activist Steve Deace reacted rapturously, proclaiming Jindal his “winner of the week” for standing up to “Republicrats.”

Jindal immediately stepped in and ordered that while he’s governor the state government is not going to be a tool of the Cultural Marxists’ Rainbow Jihad against religion — particularly Christianity….

This action by Jindal is an example of what will be required of the next president if he’s going to truly honor his oath of office to defend our Constitution against all enemies — “both foreign and domestic.”

Let’s face it, the vast majority of alleged conservatives won’t stand up to the Democrats. And almost none of them will stand up to the Republicrats. On perhaps the most important issue of them all — the First Amendment that allows us the freedom to peacefully and publicly stand on principle for everything else — Jindal has done both.

But he didn’t just stand up to them rhetorically, he actually did something about it. There are several potentially exciting presidential candidates this cycle. There’s even a couple that like Jindal have shown they will tell the Republicrats bleeding us dry to stick it where the sun doesn’t shine.

PFAW

Arkansas Governor Does Only a Partial Retreat on RFRA

Yesterday, the Arkansas legislature approved a so-called "Religious Freedom Restoration Act" bill similar to Indiana's RFRA. Today, the governor surprised people by rejecting the bill as written and asking for changes. As CNN reports:

Arkansas Gov. Asa Hutchinson says he does not plan to sign the religious freedom bill that sits on his desk right now, instead asking state lawmakers to make changes so the bill mirrors federal law.

The first-term Republican governor said he wants his state "to be known as a state that does not discriminate but understands tolerance."

While the requested change would remove some of the dangerous aspects of the bills that differentiated them from the federal version, it would still leave the door open to state-sanctioned discrimination in the name of religion.

The federal RFRA dates back to 1993, and neither its text nor its purpose empower anyone to bypass laws protecting LGBT people from discrimination. However, as PFAW Senior Fellow Elliot Mincberg has written, the Supreme Court drastically rewrote the law last year in its 5-4 Hobby Lobby decision:

[As Justice Ginsburg explained in her dissent,] the Court effectively rewrote RFRA so that it could be invoked by for-profit corporations, and so that the original law protecting individuals against a "substantial burden" on the exercise of religion was transformed to allow claims by a business owner that complying with a neutral law offended their religious beliefs in some way. Under the majority's view, Justice Ginsburg suggested, RFRA could be interpreted to "require exemptions" in cases where religious beliefs were used to justify actions that discriminated on the basis of race, gender, and sexual orientation. Pointedly, Justice Alito responded only that "prohibitions on racial discrimination" would be safe from a RFRA exemption claim, but said nothing about gender or LGBT status.

That's why Gov. Hutchinson's call for a bill that matches the federal RFRA does not solve the discrimination problem. A state law tracking the federal RFRA and passed after Hobby Lobby is far more likely to be interpreted by the courts along the same lines. This is especially so since the bill's supporters regularly cite their desire to "protect" businesspeople who are religiously offended by same-sex couples from serving them.

The Arkansas and Indiana RFRAs have features making them even more open to be used as vehicles for otherwise illegal discrimination than the federal RFRA as transmogrified by the Roberts Court. But if Gov. Hutchinson succeeds in getting a bill that matches the federal version, he still will not have accomplished his stated goal of making Arkansas "known as a state that does not discriminate."

PFAW

Gov. Pence's Claims Ignore Indiana "Religious Freedom" Law's History

As he has since signing Indiana's so-called Religious Freedom Restoration Act, Governor Mike Pence today insisted that the law does not allow discrimination. As reported in the Indianapolis Star:

[Pence] stressed that RFRA was about "religious liberty, not discrimination" and emphasized that the law does not give anyone the right to turn away customers on religious grounds.

"This law does not give anyone the right to discriminate...This law does not give anyone the right to deny services," he said.

Let's rewind the tape to the legislative debate over the bill. Senate Amendment # 4 would have added a key provision to the bill that would have made Gov. Pence's words accurate.

This chapter does not apply to:

(1) IC 22-9-1 (Indiana civil rights law); or

(2) any state law or local ordinance that prohibits discrimination on the basis of sexual orientation.

However, the state Senate defeated this amendment by a lopsided vote of 10-40.

The Indiana House was equally insistent that the bill not be amended to provide any protection to state and local anti-discrimination laws. House Amendment # 5 would have added the following text to the law:

For purposes of this chapter:

(1) the protection of civil rights; or

(2) the prevention of discrimination;

is a compelling government interest.

Unlike the Senate amendment, this would not have completely exempted anti-discrimination laws from attack under RFRA. Nevertheless, this more moderate effort to make it harder to bypass such laws was still too much for the House, which overwhelmingly rejected the amendment in a 31-60 vote.

It would be nice to think that Governor Pence was right, and that this law didn't open the door to discrimination. But that is exactly what the law does, and its history makes that even clearer.  If Pence wants to "clarify" that the state's RFRA law won't allow denial of service, he can point legislators to amendment language that would make that as clear as day.

PFAW

Georgia Pro-Discrimination Bill Exposed, But It Could Still Pass

While Georgia's misleadingly named Religious Freedom Restoration Act may still pass the state legislature before it adjourns, it had a major setback when its conservative supporters' true goal was exposed. Like similar bills being pushed across the country, it is masked as simply a measure defending religious liberty, but it is really a vehicle designed to give legal cover to discrimination. By a one-vote margin, the House Judiciary Committee amended the bill so it could not be used to trump anti-discrimination laws, with three Republicans joining all the committee's Democrats. The bill's supporters then voted to table the bill rather than advance a bill that no longer allowed discrimination.

But the bill isn't dead. Until the Georgia legislature adjourns on April 2, anything can happen. In fact, the House Judiciary Committee announced late Friday that it would resume considering the bill on Monday. But in some encouraging news, that meeting has been cancelled. As reported by the Atlanta Journal Constitution:

A specially called meeting of the House Judiciary Committee set for Monday was cancelled, leaving the future of the ‘religious liberty' bill in doubt.

...

The back-and-forth on the bill comes as Indiana deals with the backlash from adopting a similar law that has led to calls of boycotts and the potential loss of tens of millions of dollars in tourism and economic development. Indiana Gov. Mike Spence on Sunday told ABC News the law is not about discrimination but refused to say whether it would permit a business owner to refuse service to someone with whom they disagree.

As Georgia legislators are learning, this is a bill that has the public's attention, and people are not happy with it. When the Judiciary Committee heard public testimony on the bill last week, far more people showed up than the committee chairman was willing to make time for. Among those who went to the state capitol to testify was Rev. Tim McDonald, senior pastor at First Iconium Baptist Church in Atlanta, former President of Concerned Black Clergy of Metropolitan Atlanta, and current co-chair of African American Ministers In Action at PFAW. He was ultimately unable to offer his testimony in person, but he submitted it in writing. Rev. McDonald wrote, in part:

Equality and basic rights should never yield to discrimination. But this bill would legalize discrimination, and it does so by distorting the concept of religious liberty.

Many other religious leaders here in Georgia have agreed and have opposed this bill. So have conservatives like former state attorney Michael Bowers, and businesses like Wal-Mart, which has opposed similar legislation in Arkansas.

It is clear that rather than fixing a problem, this bill would create problems, often for the most vulnerable among us. Handing people the right to use the mantle of religious liberty to harm others is wrong. My faith teaches me that I should speak out against proposals that could deny basic rights to others, especially when it's being done in the name of religion.

During the public testimony, bill supporters kept returning to one misleading talking point: Although the bill mirrors a federal RFRA that has been on the books for 20 years, as well as several longtime state RFRAs, opponents couldn't point to a case where the law was used to enable otherwise illegal discrimination. Rev. McDonald addressed this in his testimony:

[This bill threatens to allow discrimination] even though, and in large part because, the bill's language tracks the language of the federal RFRA. State courts are likely to follow the guidance of the United States Supreme Court in how to interpret this almost identical language. Unfortunately, with last June's 5-4 Hobby Lobby decision, the Supreme Court gravely misinterpreted that federal law. Five Justices ruled, for the first time, that for-profit corporations can invoke the law, and they essentially excised from the statute the requirement that it can be triggered only by a substantial burden on actual religious exercise. Under Hobby Lobby, having your religious beliefs offended is enough. So a state court following the Hobby Lobby logic could easily equate a business owner's being religiously offended by a gay employee or a customer's "lifestyle choice" with a significant burden on the owner's religious liberty. That is why the bill transforms religious liberty protection from a shield into a sword.

Keep an eye out for this. Until the legislature adjourns, the bill can come back to life, and conservatives in Georgia could succeed in weaponizing religious liberty in their state as Indiana did last week.

PFAW

Alabama's Shame Grows with Bill to Make It Harder for Gays to Marry

In some parts of the world, government officials won't help you if you don't share their religious beliefs. Citizens seeking to be served by government employees have to go from office to office, experiencing the shame and frustration of being turned away by those whose salaries they pay.

Yesterday, Alabama took a step toward becoming such a place, to the delight of the far right.

The Alabama House passed the so-called "Freedom of Religion in Marriage Protection Act" by an overwhelming margin of 69-25 yesterday. Among its provisions is one stating that civil servants have the right to refuse to perform any civil marriage ceremony should they wish. As AL.com reported:

In session today, Rep. A.J. McCampbell, D-Livingston, asked [bill sponsor Jim] Hill: "Why all of a sudden has this become an issue?"

Hill replied: "I can't answer that, sir."

Really? It isn't hard to figure out:

Tears came to the eyes of Rep. Patricia Todd, D-Birmingham, as she spoke against the bill on the House floor. Todd, the only openly gay legislator in the state, said the bill was drafted to discriminate against gay couples who want to marry.

"This is very hurtful to me as an openly gay person," she said.

Ever since a federal district judge ruled that Alabama's marriage ban violates the Constitution, the state has been a showcase of defiance. Alabama Chief Justice Roy Moore violated the canons of judicial ethics in seeking to force government officials from complying with the ruling, prompting our affiliate PFAW Foundation to file a formal complaint with the Judicial Inquiry Commission. Because of Moore, Alabama quickly became a checkerboard where gay and lesbian Alabamans were locked out of full citizenship across vast swaths of the state based on the whims of local officials. The state supreme court then shut down marriages for same-sex couples across the state in a highly controversial ruling.

Now Alabama legislators are seeking to guarantee that even if the U.S. Supreme Court rules that lesbians and gays have the right to marry, it is a right they will not be able to exercise across vast swaths of Alabama, unless they can find a public servant whose religious beliefs do not include a vehement hostility to lesbian and gay equality. That this bill targets one group of people for second class citizenship cannot be seriously questioned. No one should be fooled for a moment that this has anything to do with religious liberty, a fundamental American value designed to be a shield from oppression, not a sword to harm others.

PFAW

PFAW Releases New Report on the Right's Efforts to Transform Religious Liberty from a Shield to a Sword

Last June, the Supreme Court gave certain for-profit corporations the right to deny women vitally important (and statutorily required) healthcare coverage that offends their employers' religious beliefs, claiming it was simply protecting the employers' religious liberty. Across the country, right wing extremists are seeking to empower individuals and business owners whose religious beliefs are offended by LGBT equality to exempt themselves from anti-discrimination laws – again, supposedly in the name of religious liberty. Conservative Christians aggressively seeking to deprive others of their legal rights regularly portray themselves as the victims of religious persecution.

People For the American Way has released a new report examining the many ways that religious liberty issues are increasingly coming up in public policy debates in communities across the nation. But this isn't religious liberty as it has been understood throughout our nation's history.

Authored by Senior Fellow Peter Montgomery, Religious Liberty: Shield or Sword? examines how the Far Right is working to transform this core American value from a shield protecting individuals' religious freedom into a sword that harms other people and undermines measures to promote the common good.

The report provides vital factual background and analysis to help readers better understand how religious freedom principles have traditionally been regarded, as well as how they are being twisted by a far right movement in an effort to reverse its fortunes as their substantive arguments are increasingly rejected by the American public. These distorting efforts come from conservative advocacy organizations, state and federal legislators, and even a narrow majority of the United States Supreme Court.

This report is an important tool to help understand and confront the Right in public policy debates across the country, as they increasingly seek to use religious liberty as a sword to deny rights to others, and as they continue to portray themselves as victims of religious persecution.

PFAW

Ginsburg Concurrence Is an Important Reminder on Religious Liberty

The Supreme Court issued a unanimous ruling in Holt v. Hobbs yesterday upholding the religious liberty claim of a Muslim prisoner who was prohibited by corrections officials from growing a half-inch beard. As noted in our Supreme Court term preview of Holt v. Hobbs, the case involves a federal law called the Religious Land Use and Institutionalized Persons Act, or RLUIPA.

Similar to the better-known Religious Freedom Restoration Act (RFRA), which was at issue in Burwell v. Hobby Lobby, RLUIPA is triggered when the government imposes a "substantial burden on the religious exercise" of a person confined to an institution. When that happens, the action can be upheld only if the government can demonstrate that the burden: "(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest."

In this case, especially since so many other prisons around the country allow inmates to grow half-inch beards without a security problem, few expected the prison system would win this case. And it didn't. The Court's ruling was written by Justice Alito, author of the Hobby Lobby opinion, and all the other Justices signed on.

Importantly, while Justice Ginsburg – the author of the Hobby Lobby dissent – joined the Court's opinion, she also wrote a separate concurrence to emphasize a critically important point. In its entirety, it reads:

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., accommodating petitioner's religious belief in this case would not detrimentally affect others who do not share petitioner's belief. On that understanding, I join the Court's opinion. [internal citations removed]

The removed internal citations are to her Hobby Lobby dissent's discussion of how religious liberty has always been recognized as a shield to protect people's rights, not as a sword to deny others' rights. Fortunately, Holt v. Hobbs did not present an opportunity for the narrow five-person majority to continue their project, begun in Hobby Lobby, to wholly transform the concept of religious liberty. But Justice Ginsburg (joined by Justice Sotomayor) was right to remind us of the traditional meaning of that phrase in American society and law.

PFAW Foundation

DC Circuit's Nina Pillard Writes Ruling Upholding ACA Contraception Coverage

A three-judge panel of the D.C. Circuit today upheld the contraception coverage requirement of the Affordable Care Act as it applies to religious nonprofits. The unanimous opinion in Priests For Life v. HHS was written by Obama nominee Nina Pillard.

Like in Hobby Lobby, the attack was based on the Religious Freedom Restoration Act (RFRA), under which any law imposing a substantial burden on religious exercise can be sustained only if it is the least restrictive means of achieving a compelling government purpose. But unlike Hobby Lobby, this case involves religious nonprofits rather than for-profit corporations. The law does not exclude the employees of religious nonprofits from its protection, but it does allow an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even the accommodation violates their religious liberty.

In contrast to Justice Alito and his far right colleagues in Hobby Lobby, Pillard devotes significant attention to why the ACA contraception coverage requirement is so vitally important. She writes:

The contraceptive coverage requirement derives from the ACA's prioritization of preventive care, and from Congress' recognition that such care has often been modeled on men's health needs and thus left women underinsured. As discussed below, Congress included the Women's Health Amendment in the ACA to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services, including consultations, prescriptions, and procedures relating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unplanned and risky pregnancies, with attendant adverse effects on women and their families.

She then explains how the regulations don't impose a substantial burden on the employers' religious exercise. They have no role whatsoever in the provision of contraception that they oppose. In addition, it isn't the employer's use of the accommodation that triggers the women's right to coverage; their right was triggered by Congress when it passed the ACA. Pillard gets to the nub of this effort to use religious liberty as a sword to diminish the rights of others:

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.

This will not be the last word on the matter. The same issue is being heard in other courts around the country, and the final disposition will almost certainly be by the Supreme Court.

PFAW Foundation

Unpacking Hobby Lobby & Other SCOTUS Decisions: PFAW Member Telebriefing

Yesterday, People For the American Way members participated in a special telebriefing to discuss the Supreme Court term that wrapped up this Monday and to unpack some of the critical decisions handed down by the Court this year. The call, which was kicked off by PFAW President Michael Keegan and moderated by Director of Communications Drew Courtney, featured Senior Fellows Jamie Raskin and Elliot Mincberg, as well as Executive Vice President Marge Baker.

Discussing Burwell v. Hobby Lobby, Raskin explained the case and the damaging implications of the 5-4 decision. Highlighting the “extreme and extravagant” claim made by Hobby Lobby that its religious rights were violated, Raskin described the court’s decision that the Religious Freedom Restoration Act covers “closely held” corporations and noted that this creates a “dangerous expansion of corporate personhood.” Raskin described how this exemplifies the Court in the Citizens United era, where the far right Justices regularly find ways to rule so they can enhance the power of corporations.

Mincberg also provided background on RFRA and explained how the law was distorted and expanded in this decision far beyond what anyone had in mind when it passed by an enormous bipartisan majority 20 years ago.

Members wanted to know what actions can be taken to help address the imbalance in the Court and the troubling decisions made by the Roberts’ Court in the last few years. Baker addressed the issue of rebalancing the Court, emphasizing the importance of presidential elections on the Court’s make-up.

The telebriefing also covered the recent decisions in McCullen v. Coakley, NLRB v. Noel Canning, and Harris v. Quinn, underscoring the Court’s decisive move to the right.

Listen to the full audio of the telebriefing for more information.

 

PFAW

How the Hobby Lobby Majority Distorted RFRA — and Why That’s Dangerous for All Americans

In its 5-4 ruling  today in Hobby Lobby, the Supreme Court’s right-wing majority played fast and loose with the Religious Freedom Restoration Act (RFRA), the law that provided the basis for the claim that religious liberty rights conflicted with the Affordable Care Act (ACA). As Justice Ginsburg’s dissent pointed out, the clear language and history of RFRA stated that it was intended to “restore” the protection of religious liberty that the First Amendment provided before Justice Scalia’s infamous decision in Employment Division v. Smith, which said that there was no protection for religious people whose religious practices were substantially burden by general laws. As a participant in drafting and helping get support for RFRA in the 1990s, I can testify personally that this was true. The broad coalition of groups and legislators – from PFAW to the National Association of Evangelicals, from Orrin Hatch to Ted Kennedy – would never have agreed otherwise. But the 5-4 majority in Hobby Lobby nevertheless claims that RFRA was, in Justice Ginsburg’s words, “a bold initiative departing from, rather than restoring, pre-Smith jurisprudence.”

This twisting of RFRA was significant in two ways to the Hobby Lobby result. First, it allowed the majority to rule that for-profit corporations like Hobby Lobby could claim rights under RFRA. As Justice Ginsburg pointed out, the Court had never so ruled before, since religious liberty protection properly belongs to individuals and religious institutions like churches. Second, it led to the majority’s ruling that there was a “substantial” burden” on religious exercise in the case, based on the claim that the religious beliefs of Hobby Lobby’s owners were offended by the ACA requirement. As Justice Ginsburg explained, pre-Smith law made clear that this kind of mere conflict with religious beliefs was not enough to prove a substantial burden. Instead, a requirement must actually restrict or burden  “what [the person] may believe or what he may do.” Under this analysis, Ginsburg explained, any burden in this case was too attenuated to be substantial. After all, Hobby Lobby was not required to purchase or provide contraceptives, but simply to deposit money into undifferentiated funds that finance a wide variety of benefits; it was up to individual employees whether to utilize contraceptives.

These concerns are much more than historical or theoretical. First, the majority’s rationale could deprive millions of Americans of contraceptive or other coverage under ACA. Even if restricted to closely held corporations, more than 50% of all American workers work for corporations that could similarly claim under Hobby Lobby that their religious beliefs are sincerely offended by providing coverage for contraceptives or other services, and that would be enough to trigger RFRA. Second, if a corporation can prove it is substantially burdened under RFRA because its owners or board have a sincere religious objection to a government requirement, they can make exactly those claims to try to exempt themselves from anti-discrimination and other workers’ rights laws. The Hobby Lobby majority tried to downplay this concern by Justice Ginsburg, but specifically mentioned only that laws banning racial discrimination should be safe from this claim. For example, what about laws banning discrimination based on gender and sexual orientation? The 5-4 majority opinion is almost an invitation to businesses to further distort RFRA by making such claims.

 

 

PFAW Foundation